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ESTATES &TRUSTS REPORTS

Fourth Series/Quatrieme serieRecueil de jurisprudence en droit des successions et des fiducies

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ESTATES &TRUSTS REPORTS

Fourth Series/Quatrieme serieRecueil de jurisprudence en droit

des successions et des fiducies

[Indexed as: Scott v. Vanston]

Ryan Montague Scott, Appellant (Defendant) and DeborahCarol Vanston, Respondent (Plaintiff)

Saskatchewan Court of Appeal

Docket: CACV2530

2016 SKCA 75

Richards C.J.S., Herauf, Whitmore JJ.A.

Heard: January 14, 2016

Judgment: June 14, 2016

Estates and trusts –––– Estates — Miscellaneous –––– Domicile of origin —Deceased was born in Alberta, worked in British Columbia, then worked in Sas-katchewan — Deceased listed condo in Saskatchewan for sale and moved intorented accommodation in BC — Later that year, deceased died in BC and dis-pute arose over his estate — At trial to determine domicile of deceased at date ofdeath, judge determined that deceased had abandoned Saskatchewan but had notyet established BC as new domicile of choice, therefore domicile reverted backto domicile of origin which was Alberta — Deceased’s son and current wife ap-pealed — Appeal allowed in part — Son sought to have domicile as BC whereaswife sought to have domicile as Saskatchewan — Trial judge did not err in find-ing that deceased had not acquired domicile in British Columbia, nor in findingthat deceased had abandoned Saskatchewan as domicile of choice — Trial judgeerred in finding that deceased’s domicile of origin was based on location of hisbirth, as it was to be deceased’s parents’ domicile at time of his birth — Trialjudge erred in refusing to re-open trial to hear fresh evidence on issue of domi-cile of origin, and this decision was error of law as parties were not given oppor-tunity to call evidence on issue going to merits of case and which was ultimatelydispositive of case — Matter was remitted to trial judge on specific issue of de-ceased’s domicile of origin only.

Conflict of laws –––– General principles — Domicile — Revival of domicileof origin –––– Deceased was born in Alberta, worked in British Columbia, thenworked in Saskatchewan — Deceased listed condo in Saskatchewan for sale and

ESTATES AND TRUSTS REPORTS 17 E.T.R. (4th)2

moved into rented accommodation in BC — Later that year, deceased died inBC and dispute arose over his estate — At trial to determine domicile of de-ceased at date of death, judge determined that deceased had abandoned Sas-katchewan but had not yet established BC as new domicile of choice, thereforedomicile reverted back to domicile of origin which was Alberta — Deceased’sson and current wife appealed — Appeal allowed in part — Son sought to havedomicile as BC whereas wife sought to have domicile as Saskatchewan — Trialjudge did not err in finding that deceased had not acquired domicile in BritishColumbia, nor in finding that deceased had abandoned Saskatchewan as domi-cile of choice — Trial judge erred in finding that deceased’s domicile of originwas based on location of his birth, as it was to be deceased’s parents’ domicile attime of his birth — Trial judge erred in refusing to re-open trial to hear freshevidence on issue of domicile of origin, and this decision was error of law asparties were not given opportunity to call evidence on issue going to merits ofcase and which was ultimately dispositive of case — Matter was remitted to trialjudge on specific issue of deceased’s domicile of origin only.

Cases considered by Herauf J.A.:

Davison v. N.S.G.E.U. (2005), 2005 NSCA 51, 2005 CarswellNS 266, 231N.S.R. (2d) 245, 733 A.P.R. 245, 46 C.C.E.L. (3d) 1, 35 C.C.L.T. (3d) 73,[2005] N.S.J. No. 110 (N.S. C.A.) — considered

Foote Estate, Re (2009), 2009 ABQB 654, 2009 CarswellAlta 1854, 16 Alta.L.R. (5th) 249, 53 E.T.R. (3d) 19, [2010] 7 W.W.R. 63, 475 A.R. 273,[2009] A.J. No. 1250 (Alta. Q.B.) — considered

Foote Estate, Re (2011), 2011 ABCA 1, 2011 CarswellAlta 8, (sub nom. Davidv. Foote Estate) 328 D.L.R. (4th) 695, 40 Alta. L.R. (5th) 153, [2011] 6W.W.R. 453, 66 E.T.R. (3d) 183, 493 A.R. 354, 502 W.A.C. 354, 4 C.P.C.(7th) 205 (Alta. C.A.) — followed

Gunn v. Gunn (1956), 18 W.W.R. 85, 2 D.L.R. (2d) 351, 1956 CarswellSask 10(Sask. C.A.) — considered

Housen v. Nikolaisen (2002), 2002 SCC 33, 2002 CarswellSask 178, 2002 Car-swellSask 179, [2002] S.C.J. No. 31, 286 N.R. 1, 10 C.C.L.T. (3d) 157, 211D.L.R. (4th) 577, [2002] 7 W.W.R. 1, 219 Sask. R. 1, 272 W.A.C. 1, 30M.P.L.R. (3d) 1, [2002] 2 S.C.R. 235, REJB 2002-29758, 2002 CSC 33(S.C.C.) — referred to

Koval v. Koval (1992), 1992 CarswellAlta 690, [1992] A.J. No. 971 (Alta.C.A.) — considered

L. (H.) v. Canada (Attorney General) (2005), 2005 SCC 25, 2005 CarswellSask268, 2005 CarswellSask 273, [2005] S.C.J. No. 24, 24 Admin. L.R. (4th) 1,8 C.P.C. (6th) 199, 251 D.L.R. (4th) 604, 333 N.R. 1, [2005] 8 W.W.R. 1,262 Sask. R. 1, 347 W.A.C. 1, EYB 2005-89538, [2005] 1 S.C.R. 401, 29C.C.L.T. (3d) 1, REJB 2005-89538, 2005 CSC 25 (S.C.C.) — referred to

Lord v. Colvin (1859), 62 E.R. 141, 4 Drew. 366 (Eng. Ch. Div.) — considered

Scott v. Vanston Herauf J.A. 3

Osvath-Latkoczy v. Osvath-Latkoczy (1959), [1959] S.C.R. 751, 19 D.L.R. (2d)495, 1959 CarswellOnt 84 (S.C.C.) — considered

Parlee v. McFarlane (1999), 1999 CarswellNB 74, [1999] N.B.J. No. 88, 171D.L.R. (4th) 292, 23 R.P.R. (3d) 205, 210 N.B.R. (2d) 284, 536 A.P.R. 284(N.B. C.A.) — considered

Rich v. Bromley Estate (2013), 2013 NLCA 24, 2013 CarswellNfld 149, 360D.L.R. (4th) 51, 1043 A.P.R. 107, 336 Nfld. & P.E.I.R. 107, [2013] N.J. No.216, 1 C.C.L.T. (4th) 79 (N.L. C.A.) — considered

Scott v. Cook (1970), [1970] 2 O.R. 769, 12 D.L.R. (3d) 113, 1970 CarswellOnt253, [1970] O.J. No. 1487 (Ont. H.C.) — distinguished

Trottier v. Rajotte (1939), [1940] S.C.R. 203, [1940] 1 D.L.R. 433, 1939 Car-swellQue 47 (S.C.C.) — followed

W. (S.L.) v. W. (W.N.) (2007), 2007 ABCA 282, 2007 CarswellAlta 1220, 43R.F.L. (6th) 274 (Alta. C.A.) — referred to

Wadsworth v. McCord (1886), 12 S.C.R. 466, 1886 CarswellQue 15, [1886]S.C.J. No. 18 (S.C.C.) — followed

Wyman v. Vancouver Real Estate Board (1961), [1961] S.C.R. 418, 28 D.L.R.(2d) 85, 1961 CarswellBC 193 (S.C.C.) — considered

Zhu v. Li (2007), 2007 BCSC 1467, 2007 CarswellBC 2367, 43 R.F.L. (6th)376, [2007] B.C.J. No. 2150 (B.C. S.C.) — considered

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. (2001), 2001 SCC 59,2001 CarswellOnt 3357, 2001 CarswellOnt 3358, 11 C.C.E.L. (3d) 1, [2001]4 C.T.C. 139, 204 D.L.R. (4th) 542, 274 N.R. 366, 17 B.L.R. (3d) 1, 55 O.R.(3d) 782 (headnote only), 150 O.A.C. 12, 12 C.P.C. (5th) 1, 8 C.C.L.T. (3d)60, [2001] S.C.J. No. 61, [2001] 2 S.C.R. 983, (sub nom. Sagaz IndustriesCanada Inc. v. 671122 Ontario Ltd.) 2002 C.L.L.C. 210-013, REJB 2001-25875, 55 O.R. (3d) 782, 2001 CSC 59, 55 O.R. (3d) 782 (note) (S.C.C.) —considered

APPEAL by son and wife of deceased from judgment reported at Vanston v.Scott (2014), 2014 SKQB 64, 2014 CarswellSask 207, 97 E.T.R. (3d) 148,[2014] 7 W.W.R. 796, 439 Sask. R. 236 (Sask. Q.B.), concerning determinationof domicile of deceased.

Jordan Hardy, Lynsey Gaudin, for AppellantValerie Watson, for Respondent

Herauf J.A.:

I. Introduction1 Ryan Montague Scott, the appellant, appeals the decision of the trial

judge where he found that Dr. James Montague Scott was not domiciledin British Columbia at the time of his death, but was domiciled in Alberta


(Dr. Scott’s domicile of origin). Deborah Carol Vanston, the respondent,submits that Dr. Scott was domiciled in Saskatchewan at the time of hisdeath and concurs with the appellant that the trial judge erred in findingthat Dr. Scott’s domicile was Alberta. Both parties submit that the trialjudge should have exercised his residual authority to avoid an absurdityin this case. Alternatively, both parties request that a new trial be orderedas the trial judge erred in failing to re-open the trial to hear new evidenceon the issue of domicile of origin, on which neither party had adducedevidence.

2 After careful consideration and based upon the standard of review, Ido not agree with the appellant that the trial judge erred in concludingthat Dr. Scott had not acquired a domicile of choice in British Columbia,or with the respondent that Dr. Scott had not abandoned his domicile ofchoice in Saskatchewan. However, I agree with both parties that the trialjudge erred in refusing to re-open the trial as neither party had an oppor-tunity to lead evidence on the issue of Dr. Scott’s domicile of origin,which was the determinative issue. In the result, I would order a new trialon the narrow issue of Dr. Scott’s domicile of origin. In view of thisdisposition, it is not necessary to determine whether the trial judgeshould have exercised his residual authority to avoid the absurdity, as-suming such authority exists in law, that Dr. Scott’s domicile of originwas actually Alberta.

II. Facts3 The facts of the case are taken from the decision of the trial judge

dated March 3, 2014 (see Vanston v. Scott, 2014 SKQB 64, 439 Sask. R.236 (Sask. Q.B.)).

4 Dr. James Montague Scott died on September 22, 2012. He was 58years old at the time of his death. Dr. Scott was born in Calgary, Alberta,but there is no indication that he had any connection to Alberta for thelast several decades of his life.

5 Beginning in the 1980s, Dr. Scott was practicing as a radiologist inBritish Columbia. In 1988, he began working for a group of radiologistsin Kelowna. He was, however, in constant conflict with his colleagues atthe Kelowna General Hospital and his hospital privileges were rescindedin 1991. Dr. Scott appealed the decision, which was upheld.

6 In 1998, the British Columbia College of Physicians and Surgeons(College) removed Dr. Scott from the Medical Register and placed him


on the Temporary Register. It appears that the College later placed himon permanent probation.

7 In 1999, Dr. Scott began working in Saskatoon, Saskatchewan, with agroup of radiologists. Dr. Scott moved to Saskatoon alone as his firstmarriage had ended. Dr. Scott had two children from his first marriage:Ryan, the appellant, and Elise, who stayed in Kelowna with their mother.

8 In 2000, Dr. Scott met the respondent while visiting in Kelowna andthe two began a seven-year long-distance relationship, eventually mar-rying. During the relationship, Dr. Scott was located in Saskatoon whilethe respondent remained in Kelowna. The respondent moved to Saska-toon in 2008 to live with Dr. Scott.

9 In March 2012, the group of radiologists Dr. Scott was working within Saskatoon fired him. Thereafter, he and the respondent decided itwould be impossible for him to find work as a radiologist inSaskatchewan.

10 Dr. Scott spent the next six months looking for jobs in Canada. Hecame close to securing a position in Powell River, British Columbia, butwas ultimately not hired.

11 In the summer of 2012, Dr. Scott and the respondent decided to moveto Kelowna where they had family and friends. They listed their condo inSaskatoon for sale, cancelled internet and cable services, sold furniture,and put the rest of their belongings in storage in Saskatoon. On August 1,2012, they moved a large number of their possessions into a residencethey had rented in Kelowna. The lease for the residence was threemonths followed by a month-to-month tenancy thereafter. They also reg-istered their vehicle in British Columbia and the respondent changed herdriver’s licence to reflect their Kelowna address.

12 A week after arriving in Kelowna, Dr. Scott and the respondent trav-elled to Mexico and Costa Rica looking for a place where Dr. Scott couldwork as a radiologist. According to the respondent, they came very closeto purchasing a house in Costa Rica before someone else purchased it.

13 Dr. Scott and the respondent returned to Kelowna in mid-September2012. A week later Dr. Scott died. In January 2013, the respondentmoved back into the Saskatoon condo.

14 Dr. Scott executed a will three months before his death in which heleft everything to the respondent, as well as $5,000 to each of her twoadult daughters. He specified in the will that the appellant and his sister


were to receive nothing as the appellant had dishonestly taken moneyfrom him and the appellant’s sister had disowned him.

III. The Court of Queen’s Bench Decision15 The trial judge stated that the precise issue before him was where Dr.

Scott was domiciled at the time of his death. The appellant submitted thatit was British Columbia while the respondent submitted that it wasSaskatchewan.

16 The trial judge began by setting out the law of domicile as follows:

(a) A person will always have one, and only one, domicile at anypoint in his or her life. A person begins with a “domicile of ori-gin”, which is generally the place where he or she was born.

(b) A domicile of origin can be displaced by the acquisition of a“domicile of choice”, a place where a person has acquired a resi-dence in fact in a new place and has the intention to live thereindefinitely.

(c) A person abandons a domicile of choice by ceasing to reside therein fact and by ceasing to intend to reside there permanently orindefinitely.

(d) A person can lose his or her domicile of choice by abandonmenteven though a new domicile of choice has not been acquired.

17 The trial judge proceeded to break the issue down into two questionsaccording to the applicable law:

(a) Did Dr. Scott abandon Saskatchewan as his domicile of choice inthe summer of 2012?

(b) If so, did British Columbia become Dr. Scott’s new domicile ofchoice?

18 On the first question, the trial judge found as fact that Dr. Scott hadabandoned Saskatchewan as his domicile of choice when he listed hiscondo for sale, emptied it, and left for Kelowna in the summer of 2012.The trial judge noted that it is not necessary for a person to sever everythread of attachment to cease to live in a location.

19 The trial judge further found that Dr. Scott did not intend to reside inSaskatchewan indefinitely. Dr. Scott died with an estate that was insuffi-cient to meet his retirement needs. Therefore, it is clear that he needed tofind work, which he could not in Saskatchewan.


20 On the second question, the trial judge found that Dr. Scott did notintend British Columbia to be his domicile of choice. Rather, Kelownawas a stopover until he could find work in Central America.

21 The trial judge found that Dr. Scott had established residence in Brit-ish Columbia but that he did not intend to stay there indefinitely. As inSaskatchewan, Dr. Scott could not find work as a radiologist in BritishColumbia. Instead he chose to look for positions in Mexico and CostaRica.

22 The trial judge informed the parties of his findings at the end of thetrial, including that without more his conclusion would be that Dr.Scott’s domicile at time of death would revert to his domicile of origin:Alberta. In fairness the trial judge required that each party be given anopportunity to make further representations on this issue. Therefore, heissued a fiat on October 8, 2013, setting out his findings and allowing theparties to make representations on the following questions:

(a) If, in these circumstances, the domicile does not revert back to thedomicile of origin, what is the test by which Dr. Scott’s domicileat the time of his death ought to be determined?

(b) Was sufficient evidence adduced to establish Dr. Scott’s domicileat the time of his death? If not, should the hearing be re-opened?

23 While neither party argued that the trial judge was incorrect on theapplicable law, the appellant submitted that (i) it was open to the trialjudge to depart from established law as it would be absurd to designate aplace from Dr. Scott’s distant past as his domicile and (ii) the trial shouldbe re-opened to hear more evidence related to Dr. Scott’s early years.

24 On the appellant’s first point, the trial judge held that the law of dom-icile is clear. He conceded that the decision might appear arbitrary or oddbut that it was the law and nothing in the circumstances of this case dis-tinguished it from previous authorities that had applied the law for morethan 100 years.

25 The trial judge further stated that he was bound by the doctrine ofstare decisis to make decisions consistent with prior decisions of highercourts in order to promote consistency, certainty and predictability in thelaw.

26 On the appellant’s second point, the trial judge cited Zhu v. Li, 2007BCSC 1467 (B.C. S.C.) at para 20, (2007), 43 R.F.L. (6th) 376 (B.C.S.C.) [Zhu], for the relevant principles on re-opening a trial:


(a) Prior to the entry of the formal order, a trial judge has a wide dis-cretion to re-open the trial to hear new evidence.

(b) This discretion should be exercised sparingly and with the greatestcare so as to prevent fraud and abuse of the court’s process.

(c) The onus is on the applicant to show, first, that a miscarriage ofjustice would probably occur if the trial is not re-opened and, sec-ond, that the new evidence would probably change the result.

(d) The credibility of the proposed fresh evidence is a relevant consid-eration in deciding whether its admission would probably changethe result.

27 The trial judge held that the appellant did not establish grounds for re-opening the trial. The appellant was required to set out with some partic-ularity the specific nature of the evidence that would be adduced but didnot do so. As such, the trial judge could not find that relevant, credibleevidence would be adduced if the trial was re-opened.

28 In conclusion, the trial judge held that Dr. Scott’s domicile of origin,being Alberta, was his domicile at the time of his death. Therefore, Al-berta law would determine how Dr. Scott’s estate is divided.

IV. Arguments of the Parties

A. Appellant29 The appellant requests the following relief:

(a) that the appeal be allowed and the decision of the trial judgequashed and that the Court of Appeal substitute a decision that Dr.Scott’s domicile at time of death was British Columbia for thetrial judge’s decision;

(b) alternatively, that a new trial be ordered on the issue of Dr. Scott’sdomicile of origin; and

(c) solicitor-client costs of the appeal from the estate of Dr. Scott.30 The appellant summarizes the issues on appeal as follows:

(a) Did the trial judge err in refusing to hold that Dr. Scott’s domicileat the time of his death was British Columbia?

(b) If not, did the trial judge err in refusing to allow the appellant tocall additional evidence on the issue of domicile, including on theissue of domicile of origin, after inviting counsel for submissionson this point in his fiat dated October 8th, 2013?


1. Domicile at time of death in British Columbia31 The appellant submits that the evidence at trial supports the conclu-

sion that Dr. Scott abandoned his domicile of choice in Saskatchewanand acquired a new domicile of choice in British Columbia. Therefore,the trial judge erred in holding that Dr. Scott’s domicile at his time ofdeath was not British Columbia.

32 The appellant makes two primary submissions in support of its posi-tion under this heading. The first is that the trial judge made palpable andoverriding errors of fact by ignoring relevant evidence, making findingsunsupported by the evidence, overemphasizing and underemphasizingaspects of the evidence, and drawing erroneous conclusions from the evi-dence. The second is that the trial judge misapprehended the test for ac-quiring a domicile of choice and erred in applying the legal standard re-garding intention to acquire a domicile of choice.

33 In relation to the first submission, the appellant contends that the trialjudge erred by failing to consider all of the circumstances before him andtook a narrow view of the evidence. The appellant cites Davison v.N.S.G.E.U., 2005 NSCA 51 (N.S. C.A.) at para 63, (2005), 231 N.S.R.(2d) 245 (N.S. C.A.) [Davison], for the proposition that a failure to con-sider relevant evidence constitutes an error warranting appellateintervention.

34 The appellant points to examples of evidence not considered in thetrial judge’s decision: Facebook posts by the respondent demonstratingan intention to live in Kelowna, and changes made by the respondent invehicle and licence registration reflecting residence in British Columbia.The appellant further submits that the trial judge overemphasized Dr.Scott’s disciplinary record and underemphasized or misapprehended hisconnections to British Columbia. The appellant references Donald J.M.Brown, Q.C., Civil Appeals, loose-leaf (Rel 2014-2, October 2014) (To-ronto: Carswell, 2009) at para 13:2252 citing Campbell Soup Co. v. In-ter-City Gas Utilities Ltd., (1989) 4 W.W.R. 298, for the proposition thatappellate courts need not show deference where a trial judge misappre-hends evidence. The appellant cites Rich v. Bromley Estate, 2013 NLCA24, 360 D.L.R. (4th) 51 (N.L. C.A.), for the proposition that appellatecourts may intervene where a factor is overemphasized or under-emphasized by the trial judge.

35 In regard to the second submission, the appellant argues that the trialjudge improperly framed the issue of intention to acquire a new domicileas an either/or proposition, namely whether Kelowna was an indefinite


residence or a stopover to somewhere else. The appellant also contendsthat the trial judge erred in his interpretation of the meaning of “indefi-nite.” He argues that by interpreting “indefinite” to mean “permanent,”the trial judge improperly raised the threshold for the test for intentionsince indefinite only requires an intention to reside at a place for a timethat is not fixed rather than permanently (see Foote Estate, Re, 2009ABQB 654, [2010] 7 W.W.R. 63 (Alta. Q.B.) [Foote Estate QB]).

2. Refusing to re-open the trial36 The appellant submits that the trial judge erred in refusing to allow

the appellant to tender evidence and give full submissions as to the issueof domicile of origin. The appellant references Parlee v. McFarlane(1999), 171 D.L.R. (4th) 292 (N.B. C.A.) [Parlee], for the propositionthat it is an error of law for a trial judge to raise an issue of his or herown accord going to the merits and decide the same without allowingcounsel to lead evidence on the issue. The appellant argues that after thetrial judge issued his fiat, he ultimately decided not to accept further evi-dence before reviving Dr. Scott’s domicile of origin.

37 The appellant also contends that the record was severely lacking inregard to Dr. Scott’s domicile of origin being Alberta other than that itwas his place of birth. In this regard, the appellant submits that place ofbirth does not itself lead to the determination of an individual’s domicileof origin. As such, more evidence was required.

38 The appellant further argues that the trial judge erred in his applica-tion of Zhu as the refusal to allow more evidence in that decision was arefusal to hear fresh evidence on an issue that was already before thecourt. The present case is distinguishable as the doctrines of domicile oforigin and revival were not before the court at trial.

B. Respondent39 The respondent requests the following relief:

(a) that the appeal be allowed and the decision of the trial judgequashed and that the Court of Appeal substitute its decision thatDr. Scott’s domicile at time of death was Saskatchewan for thetrial judge’s decision;

(b) alternatively, that a new trial be ordered on the issue of Dr. Scott’sdomicile of origin; and


(c) solicitor-client costs of the appeal to be paid from the estate.40 The respondent addresses the same issues as the appellant, as well as

the following issue: Did the trial judge err in concluding that Dr. Scotthad abandoned his domicile of choice in Saskatchewan?

1. Domicile at time of death in British Columbia41 The respondent submits that the trial judge was correct in finding that

Dr. Scott did not acquire a domicile in Kelowna. The respondent, how-ever, also submits that the trial judge erred in determining that Dr. Scotthad acquired a domicile in Kelowna in fact by failing to take into ac-count important facts. In this respect, the respondent concurs with theappellant that the trial judge’s failure to consider all relevant facts is anerror that warrants appellate intervention. The respondent states that thecircumstances established that Dr. Scott’s residence in Kelowna wasmerely temporary and analogous to vacation homes maintained by Dr.Scott throughout the time he resided in Saskatchewan.

42 The respondent contends the trial judge was correct in determiningthat Dr. Scott had not acquired a domicile in Kelowna by intention. Therespondent references Osvath-Latkoczy v. Osvath-Latkoczy, [1959]S.C.R. 751 (S.C.C.) [Osvath], and Wadsworth v. McCord (1886), 12S.C.R. 466 (S.C.C.) [Wadsworth], in support of the proposition that theremust be a clear intention to make the residence permanent and notmerely temporary or for some specific purpose. The respondent furtherrelies on Trottier v. Rajotte (1939), [1940] S.C.R. 203 (S.C.C.) [Trottier],for the proposition that the intention necessary requires strict and conclu-sive proof.

43 The respondent concedes that an intention to remain domiciled in aparticular place permanently may be too high a threshold as the appellantsubmits. The respondent, however, argues that Kelowna was not an in-definite residence for Dr. Scott as the appellant contends. Rather, it was atemporary residence before establishing a new home in Central America.I note in relation to this submission that it appears to be somewhat incon-sistent with the respondent’s previous submission that there must be aclear intention to establish permanent residence to acquire a domicile.

44 The respondent also takes issue with the Facebook and vehicle licenc-ing evidence cited by the appellant in relation to intention. The respon-dent submits that the trial judge determined this evidence was not mate-rial as it pertained to the respondent and not Dr. Scott and it wascontradicted at trial.


2. Abandonment of Saskatchewan as domicile at time of death45 The respondent also contends the trial judge erred in holding that Dr.

Scott was not domiciled in Saskatchewan at his time of death. The re-spondent relies on Davison and submits that the trial judge failed to con-sider relevant evidence in so holding. The respondent cites the followingas relevant facts that the trial judge did not consider in his decision: Dr.Scott maintained his golf club membership, he maintained his FacultyClub membership, he maintained his standing as a medical doctor in Sas-katchewan, he declared Saskatchewan as his residence in his June 2012will, and he declared Saskatchewan as his residence in his personal taxreturns the year before his death.

46 The respondent further submits that the trial judge committed palpa-ble and overriding errors in holding that Dr. Scott intended to abandonSaskatchewan as his domicile of choice. The respondent submits that inorder to abandon a domicile of choice, one must leave with the intentionnever to return to a permanent residence there (see Foote Estate QB atpara 40). The respondent argues that Dr. Scott needed to have an inten-tion to continue residence in another place for an indefinite period oftime before his domicile ceased to be Saskatchewan. The evidence onlyestablished that Dr. Scott intended to leave Saskatchewan once he ac-quired employment elsewhere.

47 Like the appellant, the respondent argues that the trial judge erred inoveremphasizing and underemphasizing vital pieces of evidence and inignoring or not considering vital pieces of evidence. The respondent fur-ther agrees with the appellant that a material misapprehension of evi-dence constitutes a palpable and overriding error. The respondent, how-ever, submits that such error occurred in the determination that Dr. Scotthad abandoned Saskatchewan as his domicile. Specifically, the trialjudge’s preoccupation with Dr. Scott’s employment was overemphasizedand further resulted in other significant facts being underemphasized.

3. Refusing to re-open the trial48 In the alternative to the previous submissions, the respondent agrees

with the appellant for the same reasons cited by the appellant that a newtrial should be ordered as the trial judge erred in refusing to allow theparties to lead evidence as to the issue of Dr. Scott’s domicile of origin.


V. Standard of Review49 There are multiple standards of review applicable on this appeal.

With respect to findings of fact made by the trial judge, the standard ofreview is that such findings are not to be reversed unless the trial judgecommitted a palpable and overriding error (see L. (H.) v. Canada(Attorney General), 2005 SCC 25 (S.C.C.) at paras 53-55 and 110,[2005] 1 S.C.R. 401 (S.C.C.); see also Housen v. Nikolaisen, 2002 SCC33 (S.C.C.) at para 10, [2002] 2 S.C.R. 235 (S.C.C.) [Housen]).

50 In regard to findings of law made by the trial judge, the standard ofreview is correctness (see Housen at para 8). In relation to questions ofmixed law and fact, where the legal question is extricable from the fac-tual question, the standard of review is correctness. However, where thelegal principle is not readily extricable and it is truly a matter of mixedlaw and fact, then the trial judge’s interpretation of the evidence as awhole should not be overturned absent palpable and overriding error (seeHousen at para 36).

VI. Applicable Law51 The parties raise several issues in relation to the law of domicile, in-

cluding the acquisition of a domicile of choice, abandonment of a domi-cile of choice, and revival of a domicile of origin. The parties also raisethe issue of re-opening a trial to adduce fresh evidence. Therefore, I willset out the applicable law on domicile and re-opening trials.

A. The law of domicile

1. Domicile of choice52 Wadsworth is the earliest decision of the Supreme Court on the law of

domicile in Canada. In Wadsworth, all five judges authored opinions butRitchie C.J. largely sets out the opinion of the three-two majority. ChiefJustice Ritchie begins by stating that the law of domicile is well-settledin Canada, having previously been established by the courts of England.He then cites numerous authorities for the principles that form the law ofdomicile.


53 In regard to acquiring a domicile of choice, Ritchie C.J. sets out thelaw at 475-76:

What will constitute a change of domicile has been frequently enun-ciated in the highest courts. Thus in Lord v. Colvin the Vice Chancel-lor:

I would venture to suggest that the definition of an ac-quired domicile might stand thus: “That place is properlythe domicile of a person in which he has voluntarily fixedthe habitation of himself and his family, not for a merespecial and temporary purpose, but with a present inten-tion of making it his permanent home, unless and untilsomething (which is unexpected or the happening ofwhich is uncertain) shall occur to induce him to adoptsome other permanent home.”

I am disposed to think that the definition thus modified would befound to be in accordance with most, if not all, of the leading deci-sions on the subject of acquired domicile.

But whatever may be the most correct and proper terms in which toframe a definition of domicile, this at least is clear and beyond con-troversy, that to constitute an acquired domicile two things are requi-site, act and intention, factum et animus. To use the language of aneminent jurist, to whose admirable writings I have before referred,“two things must concur to constitute domicile (of course he isspeaking of acquired domicile); first, residence; and secondly, the in-tention of making it the home of the party” There must be the factand the intent; for, as Pothier has truly observed, a person cannotestablish a domicile in a place, except it be animo et facto.

. . .

Sir J. Romilly, the Master of the Rolls:

It is quite settled that two things are necessary to consti-tute a change of domicile; first, the factum of the changeof residence; and next, the animus manendi. In otherwords, in order to effect a change of domicile, the personmust have settled in a residence out of his former domi-cile, whether it be the domicile of origin or an acquireddomicile; and he must also have the intention of makingthat residence his permanent home.

54 Therefore, based on the preceding analysis, a person establishes adomicile of choice by voluntarily choosing to reside in a location, nottemporarily or for some special purpose, with the intention of making it


his permanent home unless and until something unexpected or uncertaininduces him to adopt some other permanent home.

55 This same principle has been cited and followed in numerous subse-quent cases. In Trottier, Duff C.J. states at 207:

The principles which ought, I think, to be kept steadily in view andrigorously applied in this case are, first, that a domicile of origin can-not be lost until a new domicile has been acquired; that the process ofthe acquisition of a new domicile involves two factors, — the acqui-sition of residence in fact in a new place and the intention of perma-nently settling there: of remaining there, that is to say, as Lord Cairnssays, “for the rest of his natural life,” in the sense of making thatplace his principal residence indefinitely.

56 In Osvath, which is a relatively brief decision, the central principlecited is that quoted by Ritchie C.J. in Wadsworth from Lord v. Colvin(1859), 62 E.R. 141 (Eng. Ch. Div.). Further, this Court previously ap-plied the same principle in Gunn v. Gunn (1956), 2 D.L.R. (2d) 351(Sask. C.A.) at 353, and quoted Duff C.J.’s formulation of it from Trot-tier at 207.

57 Most recently, the Alberta Court of Appeal summarized the law inrelation to domicile of choice in Foote Estate, Re, 2011 ABCA 1 (Alta.C.A.) at paras 20-22, [2011] 6 W.W.R. 453 (Alta. C.A.) [Foote EstateCA]:

[20] One’s domicile of origin can be displaced by a “domicile ofchoice”, a place where a person has chosen to live. The classicdescription of domicile of choice is found in Udny v. Udny (1869),1866-69 L.R. 1 Sc. 441 (U.K. H.L.):

Domicile of choice is a conclusion or inference which thelaw derives from the fact of a man fixing voluntarily hissole or chief residence in a particular place, with an inten-tion of continuing to reside there for an unlimited time. ...There must be a residence freely chosen, and not pre-scribed or dictated by any external necessity, such as theduties of office, the demands of creditors, or the relieffrom illness; and it must be residence fixed not for a lim-ited period or particular purpose, but general and indefi-nite in its future contemplation.

[21] Of particular relevance to this appeal is the requirement that thechoice to change domicile must be voluntary, not dictated by busi-ness, debts or health. Some authorities speak of one’s domicile ofchoice as a place where one intends to “end one’s days”. That lan-


guage is unhelpful where, as here, a person with a fatal and fast-mov-ing illness makes a trip shortly before his death for treatment. Deter-mining an intention to change domiciles in such a situation is not asimple matter of saying the deceased intended to “live out his days”in the new location. It could not, in most cases, be described as avoluntary move.

[22] The acquisition of a domicile of choice involves two factors:“the acquisition of residence in fact in a new place and the intentionof permanently settling there ... in the sense of making that place[one’s] principal residence indefinitely”: Trottier v. Rajotte, [1940]S.C.R. 203 (S.C.C.), at 206, [1940] 1 D.L.R. 433 (S.C.C.)

[emphasis added].

58 The onus of proving that a person has acquired a domicile of choice ison the party alleging the acquisition (see Wadsworth at 470-71).

59 Regarding permanency versus indefiniteness in relation to intention,it was noted in Foote Estate QB that “indefinite” has been interpreted ina number of cases and that different case law has applied different stan-dards but that ultimately it is a factual inquiry (para 46). The high stan-dard that has been applied is that of “living out one’s days” in a jurisdic-tion (para 47). While the lower standard that has been applied is that of“no fixed intention of leaving” (para 48). I would settle any controversyrelating to the proper standard to be applied in determining intention toacquire a domicile of choice by endorsing the test set out in para 22of Foote Estate CA, namely, “‘... the intention of permanently settlingthere ... in the sense of making that place [one’s] principal residenceindefinitely’”.

2. Abandonment60 Just as a person can acquire a domicile of choice, he or she may also

abandon a domicile of choice. The principle of abandonment is not fullyaddressed in any of the three Supreme Court decisions on domicile ex-cept in reference to the abandonment of a domicile of origin in favour ofa domicile of choice. The principle is, however, considered in FooteEstate CA and Foote Estate QB. The Court in Foote Estate CA sets outthe principle of abandonment:

[25] The following rule is set out in Dicey, Morris and Collins onThe Conflict of Laws, 14th ed. (London: Sweet & Maxwell, 2006) at151:

Rule 13 - (1) A person abandons a domicile of choice in acountry by ceasing to reside there and by ceasing to in-


tend to reside there permanently or indefinitely, and nototherwise.

[26] The test for loss of domicile of choice is two-fold: it requires anintention to cease to reside in a place coupled with acts that end one’sresidence. It is described in Dicey as follows:

A domicile of choice is lost when both the residence andthe intention which must exist for its acquisition are givenup. It is not lost merely by giving up the residence normerely by giving up the intention.

[Emphasis added]

[27] Castel & Walker, in their Canadian Conflict of Laws at s. 4.8,6th ed. (Markham, Ont.: LexisNexis Butterworths, 2005), describethe process of abandonment of a domicile of choice as “the converseof its acquisition”. They also note the dual nature of the test. To para-phrase, for Mr. Foote to have abandoned his domicile of choice onNorfolk Island, it would be necessary for him to cease to reside thereand also to cease to have the intention to return to Norfolk Island ashis permanent home. “Absence without the intention of abandonmentis of no effect, nor is intention without any actual change of resi-dence”: Castel & Walker at s. 4.8.

61 In Foote Estate QB, Graesser J. cites other authorities to support theabove proposition:

[51] It is certainly possible to abandon a domicile of choice or originin favour of a new domicile of choice, but such change involvesmore than a change in intention and requires some act of abandon-ment. That requirement to take some tangible step to abandon wasidentified in Fedeluk v. Fedeluk as relating to the dual prerequisitesto adopt a new domicile of choice:

[12] It is clear that the abandonment of a domicile ofchoice requires, as does its acquisition, the combination offactum and intention: See Jones v. Kline, [1938] 3W.W.R. 65, at 75 (Alta.) and other cases cited at p. 409 ofPower on Divorce, 2nd ed. The intention to abandon isinsufficient in itself to effect the abandonment so long asthe person remains within the domicile or territory: SeeZanelli v. Zanelli (1948) 64 TLR 556, 92 Sol J 646.

[Emphasis added.]

. . .


[53] Howson J. in Jones v. Kline (Jones), at para. 16, stated the ruleas:

... in order to lose the domicile of choice and revive thedomicile of origin, it is not sufficient for the person toform the intention of leaving the domicile of choice, hemust actually leave it with the intention of leaving itpermanently.

[Emphasis added.]

62 As noted above, a person need not acquire a new domicile of choicefor a prior domicile of choice to have been abandoned. Rather, a personmay abandon a domicile of choice not having any other domicile but fortheir domicile of origin (see Foote Estate QB at para 77). Important, aswell, is the point that a person need not completely cease to reside in alocation to abandon it as his or her domicile (see Foote Estate CA at para33).

3. Domicile of origin and revival63 Domicile of origin is of particular importance because no person can

ever have more than one domicile but, at the same time, a person mustalways have a domicile (see Wadsworth at 468). It is often the case thenthat a person’s domicile of origin becomes relevant where no domicile ofchoice has been established or it has been abandoned.

64 Justice Graesser in Foote Estate QB summarizes the importance of adomicile of origin at para 24:

The domicile of origin, that is the domicile when one is born, has aspecial status in the common-law, and courts have required specialindications that a person has abandoned their domicile of origin. Thisrule, and its requirements were indicated by the Supreme Court ofCanada in Trottier v. Rajotte, at p. 208-209:

I think it is important also to emphasize this: the require-ment of strict and conclusive proof is one which is natu-rally exacted owing to the very grave consequences en-tailed by a change of domicile. Lord Buckmaster says inRamsay v. Liverpool [[1930] A.C. 588, at 590.]:

The law upon the matter is settled. A domicileof origin can be changed and in its place adomicile of choice acquired, but the alterationis a serious matter not to be lightly assumed,for it results in a complete change of law inrelation to two of the most important facts of


life, marriage and devolution of property. Thisis admirably expressed by Lord Curriehill inDonaldson v. McClure [(1857) 20 D. 307, at321.] in words unnecessary to repeat, whichwere expressly approved by Lord Halsbury inMarchioness of Huntly v. Gaskell [[1906] A.C.56, at 66.].

And, to quote once more from Lord Macnaghten’s judg-ment in Winans v. Attorney General [[1904] A.C. 287, at291.], he says: “And,” says his Lordship (referring toLord Westbury in Bell v. Kennedy [(1868) L.R. 1 Sc.App. 321.])

“unless you are able to shew that with perfectclearness and satisfaction to yourselves, it fol-lows that a domicil of origin continues.” Soheavy is the burden cast upon those who seekto shew that the domicil of origin has been su-perseded by a domicil of choice! And rightly, Ithink. A change of domicil is a serious matterserious enough when the competition is be-tween two domicils both within the ambit ofone and the same kingdom or country more se-rious still when one of the two is altogetherforeign. The change may involve far reachingconsequences in regard to succession and dis-tribution and other things which depend ondomicil.

[Emphasis added.]

See also Bowie v. Liverpool Royal Infirmary, [1930] All E.R. Rep.127; J. Castel & J. Walker, at p. 4-3; A.V. Dicey, J.C. Morris & L.Collins, at p. 132; and G.C. Cheshire, P.M. North, J.J. Fawcett & J.Carruthers, at p. 171.

65 While a domicile of origin is acquired at birth, it is not a person’splace of birth that determines his or her domicile of origin. A child’sdomicile is the domicile of his or her parents when the child is born (seeWadsworth at 469 and 473). Therefore, a person may be born in Sas-katchewan while having a domicile of origin in Alberta if that is thedomicile of his or her parents at the time of his or her birth.

66 The doctrine of revival applies when a person has abandoned a domi-cile of choice but has failed to acquire a new domicile of choice. Simplystated, the doctrine is that where no domicile of choice is established the


domicile of origin is revived and serves as a person’s domicile (see Wad-sworth at 471 and 474). In essence, the domicile of origin remains latentor in abeyance and is automatically revived where a new domicile ofchoice is not immediately created (see Foote Estate QB at para 77).

B. Re-opening a trial to permit fresh evidence and submissions on anissue raised by the trial judge

67 In 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC59, [2001] 2 S.C.R. 983 (S.C.C.) [Sagaz], the Supreme Court consideredthis issue in a case where a party sought to have a trial re-opened toadduce fresh evidence after the trial judge had released his reasons butnot entered a formal judgment:

[60] This Court provided in Hamstra (Guardian ad litem of) v.British Columbia Rugby Union, [1997] 1 S.C.R. 1092, at para. 26:

It has long been established that, absent an error of law,an appellate court should not interfere with the exerciseby a trial judge of his or her discretion in the conduct of atrial.

Appellate courts should defer to the trial judge who is in the bestposition to decide whether, at the expense of finality, fairness dictatesthat the trial be reopened. See Clayton v. British American SecuritiesLtd., [1934] 3 W.W.R. 257 (B.C.C.A.), at p. 295:

[The trial judge] would of course discourage unwarrantedattempts to bring forward new evidence available at thetrial to disturb the basis of a judgment delivered or to per-mit a litigant after discovering the effect of a judgment tore-establish a broken-down case with the aid of furtherproof.

[61] Further, the case law dictates that the trial judge must exercisehis discretion to reopen the trial “sparingly and with the greatestcare” so that “fraud and abuse of the Court’s processes” do not result(see Clayton, supra, at p. 295, cited in Scott, at p. 774).

[62] In this case, the trial judge decided not to exercise his discretionto reopen the trial because neither of the two steps of the test in Scott,supra, was met to his satisfaction. First, he found that he could notsay that the new evidence, if presented at trial, would probably havechanged the result, only that it may have changed the result ... Sec-ond, the trial judge found that Landow’s evidence could have beenobtained before trial. ...


68 The test referred to in the last paragraph above comes from Scott v.Cook (1970), 12 D.L.R. (3d) 113 (Ont. H.C.) [Scott], and its two stepsinvolve asking: (i) would the fresh evidence, if presented at trial, proba-bly have changed the result; and (ii) could the evidence have been ob-tained before trial by the exercise of reasonable diligence?

69 Further, several courts of appeal in Canada have raised other consid-erations where the circumstances are such that a party has not been ableto lead evidence or make submissions in relation to an issue going to themerits of the case.

70 The Alberta Court of Appeal has stated that it is an error of law for ajudge to make an order without giving a party the opportunity to presentevidence or to respond to the judge’s concerns (see W. (S.L.) v. W.(W.N.), 2007 ABCA 282 (Alta. C.A.) at para 5, (2007), 43 R.F.L. (6th)274 (Alta. C.A.)).

VII. Analysis

A. Did the trial judge err in concluding that Dr. Scott had notestablished a domicile of choice in British Columbia?

71 In my view, the trial judge did not err in finding that Dr. Scott had notacquired a domicile in British Columbia. The trial judge did not commitany palpable or overriding errors of fact when interpreting the evidenceor drawing inferences. The record demonstrates that there was conflict-ing evidence in relation to Dr. Scott’s ability and intention to reside andwork in British Columbia. The trial judge was cognizant of Dr. Scott’sinability to retire due to lack of resources. The trial judge specificallydealt with the issue of Dr. Scott’s inability to obtain employment in Brit-ish Columbia due to his prior discipline record in British Columbia andhis firing in 2012 in Saskatchewan. His ultimate conclusion at para 35that Kelowna was “nothing more than a stopover - a temporary place ...until he could find a job in Central America” was amply supported by theevidence.

72 Further, the trial judge did not err in his interpretation or applicationof the test for acquiring a domicile of choice. The trial judge describedthe test as follows: “[a] domicile of origin can be displaced by the acqui-sition of a ‘domicile of choice’, a place where a person has acquired aresidence in fact in a new place and has the intention to live there indefi-nitely” (trial decision at para 20). It is, in substance, the test adopted bythe Supreme Court in Trottier and the Alberta Court of Appeal in FooteEstate CA. In my view, it is the proper test to be applied when determin-


ing whether a new domicile of choice has been acquired. In stating thatthe question was whether Kelowna was an indefinite residence or a stop-over, the trial judge did not misapprehend the test for acquiring a domi-cile of choice.

B. Did the trial judge err in concluding that Dr. Scott had abandonedhis previous domicile of choice in Saskatchewan?

73 Once again, in my view, the trial judge did not err in finding that Dr.Scott had abandoned Saskatchewan as his domicile of choice. As withhis finding that British Columbia was not acquired by Dr. Scott as adomicile of choice, the trial judge did not commit any palpable or over-riding errors in interpreting the evidence before him. Not only was thereevidence that Dr. Scott had left Saskatchewan in fact but the respon-dent’s own evidence discloses that Dr. Scott did not intend to return toSaskatchewan as he was planning to move to Central America and hadput his Saskatoon condo up for sale to fund living there. The fact that Dr.Scott maintained some ties to Saskatoon, such as his club memberships,does not preclude this finding by the trial judge as a person need notsever all ties to a location to have abandoned it as his domicile (seeFooteEstate QB at para 77).

74 I would also note on this point that the respondent is actually incor-rect in her submission that Dr. Scott needed to have an intention to residein some other place for an indefinite period of time before he could aban-don Saskatchewan as his domicile. The reason the doctrine of revivalexists is because a person may abandon a domicile of choice withouthaving an intention to reside in another location, which means that per-son’s domicile of origin must revive (see Wadsworth at 471 and 474).

C. Did the trial judge err in failing to exercise residual authority toavoid an absurdity?

75 As alluded to in the introduction, both parties raised the issue ofwhether the revival of Dr. Scott’s domicile of origin (Alberta) would leadto an absurdity and whether the trial judge can exercise residual authorityto avoid an absurdity. While the potential for this residual authority hasfound support from two lower courts in Ontario and Alberta, there ap-pears to be no case where such authority has actually been applied if itexists. That said, since the residual authority has never been consideredby a higher court in Canada, it has also not been found to be inconsistentwith the law of domicile. In view of the disposition of this appeal, I find


it unnecessary to make a determination on this issue as it may be a factorin the new trial relating to Dr. Scott’s domicile of origin.

76 The caveat to this point, however, is that the trial judge erred in hisanalysis of whether Alberta was Dr. Scott’s domicile of origin. Referencecan be made to paras 65 and 66 of this judgment. The trial judge statedthat a person’s domicile of origin is generally where he or she is born. Inconcluding that Dr. Scott’s domicile of origin was Alberta because hewas born in Calgary, the trial judge erred in law because domicile oforigin is not determined by place of birth but by a person’s parents’ dom-icile at the time of his or her birth (see Wadsworth at 469 and 473). Therecord only discloses that Dr. Scott was born in Alberta and not whetherAlberta was his parents’ domicile at the time of his birth. Therefore,before it can be argued that reviving Dr. Scott’s domicile of origin leadsto an absurd result, there would need to be an evidentiary basis for con-cluding that his domicile of origin was Alberta.

D. Did the trial judge err in refusing to re-open the trial to hear freshevidence related to Dr. Scott’s domicile of origin?

77 In my opinion, the trial judge erred in refusing to re-open the trial tohear fresh evidence on the issue of domicile of origin. The trial judge, inhis fiat dated October 8, 2013, does appear to demonstrate that he wasconcerned with providing the parties a further opportunity to adduce evi-dence and make submissions. The trial judge’s final decision to not re-open the trial to hear further evidence, however, is an error of law as theparties were not given an opportunity to call evidence on an issue goingto the merits of the case and which was ultimately dispositive of the case.

78 Further, in regard to the potential evidence that may have been ad-duced by the parties, it may be worth noting that this case is distinguisha-ble in one sense from circumstances where the test from Scott (citedin Sagaz at para 62) was applied. As the parties did not contemplate thatDr. Scott’s domicile of origin would be in issue, it cannot be said that theevidence could have been obtained before trial with reasonable diligencebecause neither party knew such evidence would be relevant to an issueat trial. In my view, a new trial is warranted on the issue of domicile oforigin.


E. Can this Court order a new trial on the specific issue of domicile oforigin?

79 In Donald J.M. Brown, Civil Appeals, loose-leaf (Rel 2016-1, March2016) vol 2 (Toronto: Canvasback Publishing, 2009) at para 6:2131, theauthor states the following:

An order may be for a complete new trial, either unconditionally oron conditions, or that the new hearing be on the existing record, orthe order may limit the number of issues to be reheard and deter-mined, as, for example, where the court affirms a decision as to lia-bility but orders a new trial on the issues of damages. Indeed, theorder may be quite specific as to the issues that are to be the subjectof the new trial. In that regard, the critical question is whether theissues are sufficiently discrete to permit making the requisite findingswithout risk of taint or confusion from the findings that were leftundisturbed.

(Footnotes omitted)

80 On ordering a new trial for a specific issue, the author cites Wyman v.Vancouver Real Estate Board, [1961] S.C.R. 418 (S.C.C.), where the Su-preme Court of Canada upheld the British Columbia Court of Appeal’sdecision to order a new trial on the issue of damages alone.

81 The author cites several appellate court decisions in support of theabove proposition as well, including Koval v. Koval, [1992] A.J. No. 971(Alta. C.A.) [Koval]. In Koval, the Alberta Court of Appeal remitted fourspecific issues to the same trial judge for further consideration and factfindings since most of the trial judge’s reasons for judgment were notappealed and the expense and acrimony involved in a full new trialwould have been prohibitive.

82 Therefore, it appears that a new trial can be ordered on the specificissue of domicile of origin.

VIII. Conclusion83 The matter is remitted to the trial judge for a new trial on the specific

issue of Dr. Scott’s domicile of origin only. Both parties are entitled toreasonable solicitor-client costs of the appeal to be paid out of the estate.

Richards C.J.S.:

I concur.

Scott v. Vanston Whitmore J.A. 25

Whitmore J.A.:

I concur.

Appeal allowed in part.


Do Canadian doctors have a right to refuse to refer patientsto physicians who will assist them to commit suicide?

Charles B. Wagner*

Aaron Pearl**

The unanimous decision in Carter v. Canada (Attorney General),1 re-leased on February 6, 2015, drastically changed the landscape of Cana-dian law with respect to physician-assisted death (“PAD”). The first par-agraph of Carter underscores why the Supreme Court of Canada’s(“SCC”) set aside those provisions in the Criminal Code2 that criminal-ized PAD:

It is a crime in Canada to assist another person in ending her ownlife. As a result, people who are grievously and irremediably ill can-not seek a physician’s assistance in dying and may be condemned toa life of severe and intolerable suffering. A person facing this pros-pect has two options: she can take her own life prematurely, often byviolent or dangerous means, or she can suffer until she dies from nat-ural causes. The choice is cruel.3

Carter found that provisions in the Code which prohibiting PAD in-fringed on s. 7 of the Canadian Charter of Rights and Freedoms,4 andwere not justified under s. 1 of the Charter. The SCC called on Parlia-ment to enact “legislation consistent with the constitutional parameters

* Charles B. Wagner is a Certified Specialist in Estates and Trusts Law. He is apartner at Wagner Sidlofsky LLP, a boutique litigation firm located in Toronto,Ontario.** Aaron Pearl is an associate at Wagner Sidlofsky LLP.1 2015 SCC 5 (S.C.C.) (“Carter”).2 R.S.C. 1985, c. C-46 (“Code”)3 Carter, at para 1.4 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982(U.K.), 1982, c. 11 (“Charter”)

Do Canadian doctors have a right to refuse to refer patients to physicians 27

set out in these reasons.”5 The Court suspended its declaration of invalid-ity for 12 months, and then granted a further four-month extension.6

In part, in response to the issues raised by such interveners as the Catho-lic Civil Rights League, the Faith and Freedom Alliance, the Protectionof Conscience Project, and the Catholic Health Alliance of Canada. TheSCC7 stated:

In our view, nothing in the declaration of invalidity which we pro-pose to issue would compel physicians to provide assistance in dy-ing. The declaration simply renders the criminal prohibition invalid.What follows is in the hands of the physicians’ colleges, Parliament,and the provincial legislatures. However, we note — as did Beetz J.in addressing the topic of physician participation in abortion in R. v.Morgentaler — that a physician’s decision to participate in assisteddying is a matter of conscience and, in some cases, of religious belief(pp. 95-96). In making this observation, we do not wish to pre-emptthe legislative and regulatory response to this judgment. Rather, weunderline that the Charter rights of patients and physicians will needto be reconciled. (Emphasis added)

Nothing in this decision compels physicians to help patients commit sui-cide. But that’s not the end of the story. The SCC made it clear it is notpre-empting the role of the legislative and regulatory bodies to reconcilethe conflict between patients’ right to PAD and certain physicians’ con-science and religious beliefs. If The College of Physicians and Surgeonsof Ontario (“College”) have their way then those health care profession-als have reason to be concerned.

The College is the body that regulates the practice of medicine in On-tario. On their website they published an article outlining their position

5 Carter, at para 126.6 Subsequently, due to the new government being voted into office in the 2015election, the SCC extended the suspension of invalidity an additional 4 months.See Carter v. Canada (Attorney General), 2016 SCC 4 (S.C.C.) at para 7.7 Carter, at para 132.


on Professional Obligations and Human Rights. We have excerpted cer-tain portions of the article8 relevant to our discussion:

Conscience or Religious Beliefs

The Canadian Charter of Rights and Freedoms (the “Charter”) pro-tects the right to freedom of conscience and religion. Although physi-cians have this freedom under the Charter, the Supreme Court ofCanada has determined that no rights are absolute. The right to free-dom of conscience and religion can be limited, as necessary, to pro-tect public safety, order, health, morals, or the fundamental rights andfreedoms of others.

Where physicians choose to limit the health services they provide forreasons of conscience or religion, this may impede access to care in amanner that violates patient rights under the Charter and Code. Thecourts have determined that there is no hierarchy of rights; all rightsare of equal importance.

Should a conflict arise, the aim of the courts is to respect the impor-tance of both sets of rights to the extent possible.

The balancing of rights must be done in context. In relation to free-dom of religion specifically, courts will consider the degree to whichthe act in question interferes with a sincerely held religious belief.Courts will seek to determine whether the act interferes with the re-ligious belief in a manner that is more than trivial or insubstantial.The less direct the impact on a religious belief, the less likely courtsare to find that freedom of religion is infringed. Conduct that wouldpotentially cause harm to and interfere with the rights of otherswould not automatically be protected.

While the Charter entitles physicians to limit the health services theyprovide for reasons of conscience or religion, this cannot impede, ei-ther directly or indirectly, access to these services for existing pa-tients, or those seeking to become patients.

Physicians have a fiduciary duty to their patients. The College re-quires physicians, who choose to limit the health services they pro-vide for reasons of conscience or religion, to do so in a manner that. . . Ensures access to care.. Physicians must provide informationabout all clinical options that may be available or appropriate to meet

8 For those interested in the full article I refer the reader to the College’s websiteat http://www.cpso.on.ca/policies-publications/policy/professional-obligations-and-human-rights


patients’ clinical needs or concerns. Physicians must not withhold in-formation about the existence of any procedure or treatment becauseit conflicts with their conscience or religious beliefs.

Where physicians are unwilling to provide certain elements of carefor reasons of conscience or religion, an effective referral to anotherhealth-care provider must be provided to the patient. An effective re-ferral means a referral made in good faith, to a non-objecting, availa-ble, and accessible physician, other health-care professional, oragency. The referral must be made in a timely manner to allow pa-tients to access care. Patients must not be exposed to adverse clinicaloutcomes due to a delayed referral. Physicians must not impede ac-cess to care for existing patients, or those seeking to become patients.

The College expects physicians to proactively maintain an effectivereferral plan for the frequently requested services they are unwillingto provide.

In summary, the Carter decision specifically does not impose any obliga-tion on doctors to participate in any way in PAD and leaves the balanc-ing of patients’ and doctors’ rights to first be addressed by the legislatureand regulating bodies. In its newly introduced legislation, Bill C-14,Prime Minister Trudeau’s Liberal government chose not to address theissue. The College wants to impose an obligation on physicians to makereferrals to patients seeking PAD. The rationale? In their view, making areferral of PAD is sufficiently trivial or insubstantial that it has a lessdirect impact on a religious belief.

In this article, the authors are specifically not addressing any metaphysi-cal or religious analysis. But what is being attempted is to review theposition taken by the College and assess whether imposing the obligationto refer patients out for PAD violates certain doctors’ freedom of con-science and religion which are guaranteed in the Charter.

Background

i) — Criminal Code

The Code provisions challenged and declared invalid in Carter were ss.14 and 241(b). Section 14 of the Code states:

No person is entitled to consent to have death inflicted on him, andsuch consent does not affect the criminal responsibility of any personby whom death may be inflicted on the person by whom consent isgiven.


Section 241(b) of the Code states:

Every one who

(a) [. . .], or

(b) aids or abets a person to commit suicide,

whether suicide ensues or not, is guilty of an indictable offence andliable to imprisonment for a term not exceeding fourteen years.

ii) — Rodriguez v. British Columbia (Attorney General)9

In 1992, the validity of s. 241(b) of the Code was challenged by SueRodriguez, a woman with amyotrophic lateral sclerosis (ALS). Ms. Rod-riguez was seeking to avoid the future stress and loss of dignity causedby the prospect of the death which usually results from ALS. In her ap-plication for an order declaring s. 241(b) of the Code invalid, Ms. Rodri-guez relied on ss. 7, 12 and 15(1) of the Charter.10 Ms. Rodriguez’s ap-plication was dismissed,11 as was her appeal.12

The SCC, in a five-to-four decision, also dismissed Ms. Rodriguez’s ap-peal. The majority of the SCC held that although s. 241(b) of the Codedeprived Ms. Rodriguez of her security of the person protected under s. 7of the Charter, any resulting deprivation was not contrary to the princi-ples of fundamental justice. Despite differing views on the issue of PAD,it was found that there is consensus in Canadian society that human life

9 1993 CarswellBC 1267 (S.C.C.) (“Rodriguez”).10 Section 7 of the Charter states: “Everyone has the right to life, liberty andsecurity of the person and the right not to be deprived thereof except in accor-dance with the principles of fundamental justice.”

Section 12 of the Charter states: “Everyone has the right not to be subjected toany cruel and unusual treatment or punishment.”

Section 15(1) of the Charter states: “Every individual is equal before and underthe law and has the right to the equal protection and equal benefit of the lawwithout discrimination and, in particular, without discrimination based on race,national or ethnic origin, colour, religion, sex, age or mental or physicaldisability.”11 Rodriguez v. British Columbia (Attorney General), 1992 CarswellBC 2292(B.C. S.C.).12 Rodriguez v. British Columbia (Attorney General), 1993 CarswellBC 20(B.C. C.A.).


must be respected and that the prohibition against PAD upholds this prin-ciple and protects vulnerable individuals.13

The majority of the SCC in Rodriguez also assumed that Ms. Rodri-guez’s equality rights under s. 15(1) of the Charter had been infringed,but found that this infringement was justified under s. 1 of the Charter.Justice Sopinka, writing for the majority, wrote that s. 241(b) of the Codeprotects all individuals against the control of others, and any exception tothe blanket protection would create an inequality.14

iii) — Carter v. Canada (Attorney General)

In Carter, the SCC revisited the PAD issue, now brought to the court byMs. Gloria Taylor. Like Ms. Rodriguez, Ms. Taylor was diagnosed withALS, which causes progressive muscle weakness. Ms. Taylor hadbrought her claim before the British Columbia Supreme Court to chal-lenge the constitutionality of the Code provisions prohibiting PAD.

In 2012, Justice Smith of the British Columbia Supreme Court ruled thatthe Code provisions prohibiting PAD contravened the constitutionalrights that ought to be afforded to the seriously ill.15 Justice Smith deter-mined that a legal regime that is well-designed and administered properlyand permissively could protect those vulnerable people, including thoseseeking a PAD, from any potential errors and abuses which the overlybroad present legal regime seeks to protect against. If this new legal re-gime were put in place, there would be no need for the criminal sanctionsthat at present attach to PAD.

Justice Smith gave Parliament one year to rewrite the laws in the Code.The federal government thereafter appealed Justice Smith’s decision.16

In its appeal, the federal government relied on the SCC decision in Rod-riguez for the proposition that only the SCC has the right to considerwhether the criminal sanctions related to PAD were constitutional. TheCourt of Appeal agreed and the trial decision was overturned. The SCCthen granted the plaintiffs leave to appeal.

13 Rodriguez, at paras 58-59.14 Ibid, at para 74.15 Carter v. Canada (Attorney General), 2012 BCSC 886 (B.C. S.C.).16 Carter v. Canada (Attorney General), 2013 BCCA 435 (B.C. C.A.).


The question before the SCC this time was: “Whether the criminal prohi-bition that puts a person to this choice [of taking their own life prema-turely, or suffering until death from natural causes] violates her Charterrights to life, liberty and security of the person [s. 7] and to equal treat-ment by and under the law [s. 15].”17

The SCC determined that the current criminal legislation forces individu-als to make a choice between either intolerable suffering or a prematurenatural death. By decriminalizing PAD, the SCC rejected the notion thatthe right to life requires an absolute prohibition on PAD. The SCC statedthat it does not agree that “individuals cannot “waive” their right to life”,and continued that, “This would create a “duty to live”, rather than a“right to life”, and would call into question the legality of any consent tothe withdrawal or refusal of lifesaving or life-sustaining treatment.”18

The SCC found that the prohibition of PAD violated the rights enshrinedin s. 7 in two ways:

a. The current laws force some people to prematurely take theirown lives, in anticipation of the suffering that they will later face;and

b. The prohibitions in the Code interfere with one’s ability tomake their own decisions regarding their body and medical care,which is not in accordance with principles of fundamental justice.

The Court’s reasoning therefore necessitated a finding that the violationscontained in the Code were overbroad, in that it catches those vulnerablepeople the law is seeking to protect, as well as those who have a fully-informed and competent desire to terminate their lives. In determiningthat PAD ought to be decriminalized, the SCC set out a declaration thatss. 14 and 241(b) of the Code are void insofar as they prohibit PAD for:

1. A competent adult;

2. who clearly consents to the termination of his/her life; and

3. has a grievous and irremediable medical condition that causesenduring suffering that is intolerable to that person in his/hercondition.19

17 Carter, at para 2.18 Carter, at para 63.19 Carter, at para 127.


Conscientious Objector Health Practitioners

i) — The Joint Committee’s Recommendation

When the SCC declared ss. 14 and 241(b) of the Code void for infringingthe claimants’ rights under s. 7 of the Charter, the Court stated that itwas for Parliament and the provincial legislatures to respond, should theyso choose, by enacting legislation consistent with the constitutional pa-rameters set out in these reasons.”20 Parliament struck a committee tomake recommendations that would “reconcile the rights of patients andphysicians in accordance with Carter”.

On December 11, 2015, Parliament passed motions to establish a jointcommittee (“Joint Committee”), for the purpose of making recommenda-tions on the framework of federal legislation regarding PAD.21 The Re-port of the Joint Committee, entitled “Medical Assistance in Dying: APatient-Centred Approach” was released in February 2016 (“Joint Com-mittee Report”). The Report makes 21 recommendations for a legislativeresponse from Parliament to Carter. Part of the Joint Committee’s man-date was to make recommendations that would “reconcile the rights ofpatients and physicians in accordance with Carter”.

One of those recommendations were as follows:

That the Government of Canada work with the provinces and territo-ries and their medical regulatory bodies to establish a process thatrespects a health care practitioner’s freedom of conscience while atthe same time respecting the needs of a patient who seeks medicalassistance in dying. At a minimum, the objecting practitioner mustprovide an effective referral for the patient (Emphasis added).22

The Joint Committee heard evidence from numerous individuals who ob-jected to this conclusion. For example, Imam Sikander Hashmi, aspokesperson for the Canadian Council of Imams, stated the following:

We would say that there should definitely be protection for indivi-dual physicians who want to avoid any type of participation in this

20 Carter, 2015, para. 126.21 Medical Assistance in Dying: A Patient-Centred Approach, Report of theSpecial Joint Committee on Physician-Assisted Dying, Hon. Kelvin KennethOgilvie and Robert Oliphant, February 2016, 42nd Parliament, 1st Session (the“Report”), at pg 2.22 Report, at pg 26.


type of procedure. I would also extend that to health care facilitiesthat are faith-based to ensure that . . .. Again, it’s a balance of rights.Those who want to stay away to whatever degree they feel is impor-tant for them, their faith, and their conscience, should have the abilityto do so.23

Speaking on behalf of the Coalition for HealthCARE and Conscience,His Eminence Thomas Cardinal Collins echoed the concerns for therights and values of health care practitioners:

[. . .] it is clear that reasonable people, with or without religious faith,can have a well-founded moral conviction in their conscience thatprevents them from becoming engaged in any way in the provision ofassisted suicide and euthanasia. They deserve to be respected. It isessential that the government ensure that effective conscience protec-tion be given to health care providers, both institutions and individu-als. They should not be forced to perform actions that go against theirconscience or to refer the action to others, since that is the moralequivalent of participating in the act itself. It’s simply not right orjust to say, “You do not have to do what is against your conscience,but you have to be sure it happens”24

Despite the pleadings for respect and protection of health practitioners’rights, the Joint Committee recommended to Parliament a regime ofmandatory referrals.

ii) — What does Bill C-14 say with Respect to Health Practitioners’Rights?

On April 14, 2016, Prime Minister Trudeau’s government introducedBill C-14,25 a proposed legislative response to the Carter decision. Bill

23 Special Joint Committee on Physician-Assisted Dying, Evidence, February 3,2016, 1905.24 Special Joint Committee on Physician-Assisted Dying, Evidence, February 3,2016, 1705.25 Bill C-14: An Act to amend the Criminal Code and to make related amend-ments to other Acts (medical assistance in dying). 1st Reading, April 14, 2016,42nd Parliament, 1st Session, 2015-2016. Available: http://www.parl.gc.ca/HousePublications/Publication.aspx?Mode=1&DocId=8183660&Language=E


C-14 received Royal Assent on June 17, 2016.26 Bill C-14 does notadopt many of the recommendations made in the Joint Committee’s Re-port. For instance the draft legislation does not include:

• That individuals not be excluded from eligibility for medical as-sistance in dying based on the fact that they have a psychiatriccondition;

• That the Government of Canada implement a second stage of thelegislative process allowing competent mature minors to requestPAD within three years;

• That the permission to use advance requests for medical assistancein dying be allowed any time after one is diagnosed with a condi-tion that is reasonably likely to cause loss of competence or after adiagnosis of a grievous or irremediable condition but before thesuffering becomes intolerable;

• That the Government of Canada work with the provinces and ter-ritories and their medical regulatory bodies to establish a processthat respects a health care practitioner’s freedom of consciencewhile at the same time respecting the needs of a patient who seeksmedical assistance in dying. At a minimum, the objecting practi-tioner must provide an effective referral for the patient.

These conditions were each recommended in the Joint CommitteeReport.

There are no specific provisions stating what steps an objecting healthpractitioner should take if he or she receives a request for PAD from apatient. On the one hand, the legislation does not require health practi-tioners to make a referral, thereby forcing them to participate in a prac-tice with which they object. On the other hand, it is concerning that thereare no provisions providing health practitioners with express religiousand conscientious protections.

The government provided some clarification on this issue on the Govern-ment of Canada, Department of Justice website. The government re-leased a “Questions and Answers” section online concurrently with thedraft Bill C-14. With respect to the question of whether health care prov-

26 An Act to amend the Criminal Code and to make related amendments to otherActs (medical assistance in dying), Statutes of Canada: 2016, c. 3.


iders would be able to decline PAD requested by a patient, the govern-ment answered as follows:

There is nothing in the proposed legislation that would compel ahealth care provider to provide medical assistance in dying or refer apatient to another medical practitioner. Balancing the rights of medi-cal providers and those of patients is generally a matter of provincialand territorial responsibility. However, the federal government hascommitted to work with provinces and territories to support access tomedical assistance in dying, while respecting the personal convic-tions of health care providers.27

The website then features the question of how patients can access PAD iftheir health care practitioner objects to providing it. This answer appearsto suggest that the government may be prepared to infringe on the free-dom of conscience of health care practitioners:

The Supreme Court of Canada was clear that nothing in its reasonswould compel physicians to provide medical assistance in dying andthere is nothing that compels physicians to provide medical assis-tance in dying in the proposed legislation. However, physicians andnurse practitioners exercising their conscience rights may constitute abarrier to access for those who are seeking medical assistance in dy-ing. The government will work with provinces and territories to ex-plore options to facilitate access and care coordination, while recog-nizing the personal convictions of health care providers.28

Following Royal Assent of Bill C-14, the Government of Canada pub-lished further commentary on its website addressing this issue. The web-site states as follows:

Not all health care providers will be comfortable with giving or help-ing to provide medical assistance in dying. The practice may not beconsistent with a provider’s beliefs and values. The legislation doesnot force any person to provide or help to provide medical assistancein dying.

However, this could create problems for patients who want to accessmedical assistance in dying.

27 Government of Canada, Department of Justice, Medical Assistance in Dying:Questions and Answers, Available: http://www.justice.gc.ca/eng/cj-jp/ad-am/faq.html.28 Ibid.


The federal government will work with provinces and territories todevelop a national coordination system for end-of-life care services.The system would guide people to information about where they canfind help.29

The suggestion that health practitioners exercising their rights may con-stitute a barrier to access to medical services raises concern for those thatmay be affected. The current legislative limbo leaves many health practi-tioners in the dark on the regulations that may be developed by Canadaor by the provinces and territories.

iii) — Freedom of Religion and Conscience in Canada

Pursuant to s. 2(a) of the Charter, everyone has the fundamental freedomof conscience and religion. The seminal case regarding s. 2(a) of theCharter is R. v. Big M Drug Mart Ltd.30 At para. 95 of Big M DrugMart, in discussing the meaning of a freedom in the Charter, the major-ity of the SCC stated, “freedom can primarily be characterized by theabsence of coercion or constraint.”31 If a person is compelled by the stateor the will of another to a course of action or inaction which he wouldnot otherwise have chosen, he is not acting of his own volition and hecannot be said to be truly free.”32 If health practitioners are required tomake a referral for a patient who is seeking PAD, the Parliament wouldbe forcing those doctors to participate in a course of action that may becontrary to their beliefs or their conscience. This may constitute an in-fringement of s. 2(a) of the Charter.

In the SCC decision R. v. Morgentaler,33 the seminal case on abortion inCanada, the SCC discusses Canadian freedom of conscience in relationto abortion. Writing for the majority, Justice Beetz stated, “Given that thedecision to appoint a [abortion] committee is in part one of conscience,and in some cases one which affects religious beliefs, a law cannot force

29 Government of Canada, Medical assistance in dying commentary. Available:http://healthycanadians.gc.ca/health-system-systeme-sante/services/palliative-pallatifs/medical-assistance-dying-aide-medicale-mourir-eng.php30 [1985] 1 S.C.R. 295, 1985 CarswellAlta 316 (S.C.C.) [“Big M Drug Mart”].31 Ibid, at para 95.32 Big M Drug Mart, at para 95.33 [1988] 1 S.C.R. 30 (S.C.C.) [“Morgentaler”].


a [hospital] board to appoint a [abortion] committee, any more than itcould force a physician to perform an abortion.”34 This is authority forthe proposition that Parliament is precluded from forcing physicians toprovide procedures to which they object based on their freedom of relig-ion or freedom of conscience.

iv) — The Medical Community’s Position

The Canadian Medical Association (“CMA”)35 has demonstrated thatthey stand for the protection of the freedom of conscience and religionfor health practitioners in Canada. Prior to the release of the Joint Com-mittee’s Report, on January 21, 2016 the CMA released its own set ofrecommendations for a Canadian approach to PAD.36 These recommen-dations included a section on a doctor’s moral opposition to PAD. Therecommendation put forth by the CMA regarding conscientious objectionby a physician is:

Physicians are not obligated to fulfill requests for assisted dying.This means that physicians who choose not to provide or participatein assisted dying are not required to provide it or to participate in it orto refer the patient to a physician or a medical administrator who willprovide assisted dying to the patient. There should be no discrimina-tion against a physician who chooses not to provide or participate inassisted dying.37

The CMA also carried out a dialogue with its members in order to getpositions directly from doctors on the issue. The CMA released a sum-mary report of this member dialogue, which shows that the views of phy-sician-members differed greatly. The summary report specifically ex-plored the issue of mandatory referrals since this had been recommendedby the Joint Committee. One viewpoint expressed by a doctor which is

34 Morgentaler at p. 112.35 Information on the CMA can be found online at: https://www.cma.ca/En/Pages/about-cma.aspx36 Principles-based Recommendations for a Canadian Approach to Assisted Dy-ing, Canadian Medical Association. Available: https://www.cma.ca/Assets/as-sets-library/document/en/advocacy/cma-framework_assisted-dying_final-jan2016.pdf37 Ibid, at s. 5.2.


included in the Summary Report emphasizes that a referral can oftenconstitute participation in the view of a health practitioner:

When a doctor makes a referral, she puts her name behind the requestand, in effect, indicates that she believes a patient would benefitoverall from the service being sought . . . making a referral is a delib-erate action undertaken by a doctor that has intended consequencesfor the patient. Although the referring doctor does not directly pro-vide the requested service to the patient, in making a referral her ac-tions are closely linked to and play a causal role in what ultimatelyhappens . . . the principle that one shares responsibility for an actionperformed by another person if one facilitates or arranges that actionis engrained in our society’s norms and legal code. Carrying out anactivity oneself or arranging for someone else to do it are morallyequivalent. Therefore, requiring doctors to refer for services to whichthey morally object coerces them to become active participants inacts that they believe to be wrong and, hence, to grossly violate theirconsciences.

The Coalition for HealthCARE and Conscience (“CHCC”), which repre-sents over 5,000 physicians across Canada, has also expressed concernfor doctor’s rights. The CHCC released a statement following the intro-duction of Bill C-14 on April 14, 2016, calling for strong protection forconscientious objectors. Included in this statement is the observation thatno other foreign jurisdiction in the world that has legalized euthana-sia/assisted suicide forces health care workers to act against their con-science, mission, or values.38 The statement also points out that a NanosResearch poll found that 75% of Canadians agree that doctors should beable to opt out of offering assisted dying.

Many health practitioner Christian and Catholic groups have also beenoutspoken about the rights of health practitioners. The Christian Medicaland Dental Society of Canada, the Catholic Health Alliance of Canadaand the Catholic Health Sponsors of Ontario have all called for legisla-tive protections for conscientious objectors.

On the other hand, the College of Physicians and Surgeons of Ontario(“CPSO”) has shown support for a mandatory referral system. The CPSO

38 “Conscience protection still at risk with assisted death legislation: Coalitionfor HealthCARE and Conscience”, News Release, Ottawa, Ontario (April 14,2016).


released its “Interim Guidance on Physician-Assisted Death”39 in Janu-ary 2016. With respect to conscientious objection, the Interim Guide pro-vides that where a physician declines to provide PAD, an effective refer-ral must be provided. Like the Joint Committee’s recommendation, thisshows a disregard for the Charter rights of health practitioners. As fur-ther discussed below, it is the position of the authors that the rights ofpatients can be adequately protected without infringing the rights ofhealth practitioners.

v) — Is it Legal to Force Conscientious Objectors to Participate inPAD?

If Parliament is to reconcile the rights of health practitioners and patients,it is important to consider whether it is necessary to force conscientiousobjectors to participate in PAD. In the United States, the two states thathave had PAD regimes in place for the longest period of time are Oregonand Washington. By extrapolating the amount of PAD cases in thesestates, it can be estimated how widespread PAD may be in Canada in thecoming years. A look at the statistics demonstrates that there is no reasonthat it is necessary to force conscientious objector health practitioners toparticipate in a PAD regime.

The state of Oregon passed the Death with Dignity Act40 in 1994. Thisstatute legalized PAD with certain restrictions, making it the first state inthe U.S. to permit certain terminally ill patients to choose the time oftheir death. The Oregon Public Health Division is required to release anannual report which includes statistics on PAD in the state from the year.According to Oregon’s annual report for 2014, 155 individuals receivedprescriptions for lethal doses of medications in 2014 as a result of Ore-gon’s Death with Dignity Act. These numbers have also grown incre-mentally almost every year. In 1998, 4 years after Oregon legalizedPAD, 24 individuals received lethal prescriptions.

39 Interim Guidance on Physician-Assisted Death, The College of Physiciansand Surgeons of Ontario Policy Number 1–16. (Approved by council January2016).40 ORS 127.800-995.


The state of Washington’s Death with Dignity Act41 came into effect onMarch 5, 2009. Similar to Oregon, the Washington Department of Healthcollects information from healthcare providers and produces an annualstatistical report. According to the Washington State Department ofHealth 2014 Death with Dignity Act Report Executive Summary,42 176individuals are known to have received lethal medication in 2014.

According to the U.S. government census data, in 2014 Oregon had apopulation of 3,971,202 people, and Washington had a population7,063,166.43 According to Statistics Canada,44 the population of Canadaas of 2015 is 35,851,800 people. By extrapolating the Oregon PAD sta-tistics compared with its population, Canada’s population may be receiv-ing approximately 1,399 requests for PAD after 20 years of legalization,at which time the Canadian population will have grown. By extrapolatingWashington’s 2014 numbers, which come five years after the legaliza-tion of PAD, Canada can expect approximately 893 requests for PAD peryear in the nearer future.

According to CMA Canadian physician statistics, as of January 2016there were 80,544 active physicians in Canada.45 With the amount ofphysicians in the country and the projected amounts of PAD requestsbased on extrapolated U.S. data, there is no reason why doctors and otherhealth practitioners who object to PAD should be forced against theirwill to participate, either by way of a referral or otherwise. There are nostatistics at this time showing how many doctors and health practitionersin Canada will be willing to participate in PAD, but it is expected that agreat deal of physicians will be willing to do so. Health practitioners’freedom of conscience and religion should not be violated when there isenough doctors to provide the service in question.

41 RCW 70.245.42 Washington State Department of Health 2014 Death with Dignity Act ReportExecutive Summary, Available: http://www.doh.wa.gov/portals/1/Documents/Pubs/422-109-DeathWithDignityAct2014.pdf43 Annual Estimates of the Resident Population: April 1, 2010 to July 1, 2015,U.S. Census Bureau, Population Division (December 2015).44 Government of Canada, Statistics Canada, Table 051-0001. Available:http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/demo02a-eng.htm.45 “Number of Physicians by Province/Territory and Specialty, Canada, 2016”,CMA Masterfile, January 2016, Canadian Medical Association.


vi) — What is a Solution to Reconcile the Rights of HealthPractitioners and Patients?

The SCC stated that the Charter rights of patients and physicians willneed to be reconciled. The Joint Committee’s recommendation does notreflect reconciliation of these rights. Bill C-14 leaves the door open forprovinces and territories to force health practitioners to make referralsagainst their conscience. A system is needed which allows patients toaccess PAD and that allows conscientious objectors to refrain fromparticipation.

The CMA has already proposed an alternative to a mandatory referralsystem. Dr. Jeffrey Blackmer, an executive director at CMA, has dis-cussed the creation of a central mechanism to facilitate access to PAD.46

Conscientious objecting health practitioners could then refer patients tothis service but not directly to a doctor.

The CHCC has also suggested the creation of a third-party agency thatwould give patients direct access to an assessment advisor who can pro-vide resources and support and connect patients with health care practi-tioners and facilities that provide PAD.47

The Quebec legislation has also set out a system which does not forcehealth practitioners to make a referral. Pursuant to An Act RespectingEnd-of-Life Care (the “ARELC”),48 which came into force in Quebec onDecember 10, 2015, a physician who receives a request for PAD andwho does not perform PAD must notify the executive director of the in-stitution where they practice, or the executive director of the local au-thority serving the territory if the physician practices privately. The exec-utive director must then take the necessary steps to find, as soon aspossible, another physician willing to deal with the request.49 This takesthe referral obligation out of the hands of individual health practitioners

46 Shelby Ubelacker, “Canadian Medical Association Disappointed With LatestAssisted Suicide Recommendation”, The Canadian Press. February 26, 2016.Available: http://www.huffingtonpost.ca/2016/02/26/assisted-suicide-canada_n_9331552.html47 “Canadians Shouldn’t Have to Compromise Their Conscience”, Coalition forHealthCARE and Conscience. Available: http://www.canadiansforconscience.ca/the_issues48 RSQ c S-32.0001.49 ARELC, s. 31.


and therefore does not force them to act against their conscience or relig-ious beliefs.

While the federal government should have protected the freedoms ofhealth practitioners directly in its legislation, the systems discussedabove provide provinces and territories with options aside frommandatory referral mandates.

Concluding Remarks

While the SCC declared that PAD will be legalized in Canada in theCarter decision, the SCC was also clear that its decision did not imposeon physicians and other health practitioners an obligation to participate.Instead, it called upon the legislature and regulatory bodies to balancehealth practitioners’ freedom of religion and patients’ rights to PAD.Given the silence of the legislation on the issue of referrals, it now fallsupon the regulatory bodies. It remains to be seen if the regulatory bodieswill endeavour to force physicians to make referrals for PAD.

In our view, imposing an obligation to make such a referral contravenesdoctors’ religious freedoms in a manner that is not demonstrably justifia-ble in a free and democratic society. We base this view on the SupremeCourt of Canada decision of Syndicat Northcrest c. Amselem.50

In the Syndicat case there were Orthodox Jews living in Montreal whowanted to build a small hut outside their homes (“Succah”) to celebratethe holiday of Sukkot. The city by-laws forbade setting up these units onthe balconies of the condominiums in question which, inter alia, prohib-ited decorations, alterations and constructions on the balconies. Thosewho opposed the Sukkahs asked for a permanent injunction prohibitingthe Orthodox Jews from setting up succahs. At trial and at the court ofappeal the application for the injunction was granted. The Supreme Courtof Canada allowed the appeal of the Orthodox Jews and found that theprinciple that freedom of religion must be exercised within reasonablelimits and with respect for the rights of others, subject to such limitationsas are necessary to protect public safety, order and health and the funda-mental rights and freedoms of others.

50 2004 SCC 47, [2004] 2 S.C.R. 551 (S.C.C.) (“Syndicat”).


We quote several paras. of Syndicat case which we hope will be instruc-tive:

57 Once an individual has shown that his or her religious freedom istriggered . . ., a court must then ascertain whether there has beenenough of an interference with the exercise of the implicated right soas to constitute an infringement of freedom of religion under theQuebec (or the Canadian) Charter.

58 More particularly, as Wilson J. stated in Jones, supra, writing indissent, at pp. 313-14:

Section 2(a) does not require the legislature to refrain from imposingany burdens on the practice of religion. Legislative or administrativeaction whose effect on religion is trivial or insubstantial is not, in myview, a breach of freedom of religion. [Emphasis added.]

Section 2(a) of the Canadian Charter prohibits only burdens or impo-sitions on religious practice that are non-trivial. This position wasconfirmed and adopted by Dickson C.J. for the majority in R. v.Videoflicks Ltd., supra, at p. 759:

All coercive burdens on the exercise of religious beliefs are poten-tially within the ambit of s. 2(a).

This does not mean, however, that every burden on religious prac-tices is offensive to the constitutional guarantee of freedom of relig-ion . . .. Section 2(a) does not require the legislatures to eliminateevery minuscule state-imposed cost associated with the practice ofreligion. Otherwise the Charter would offer protection from innocu-ous secular legislation such as a taxation act that imposed a modestsales tax extending to all products, including those used in the courseof religious worship. In my opinion, it is unnecessary to turn to s. 1in order to justify legislation of that sort . . .. The Constitution shel-ters individuals and groups only to the extent that religious beliefs orconduct might reasonably or actually be threatened. For a state-im-posed cost or burden to be proscribed by s. 2(a) it must be capable ofinterfering with religious belief or practice. In short, legislative oradministrative action which increases the cost of practising or other-wise manifesting religious beliefs is not prohibited if the burden istrivial or insubstantial: see, on this point, Jones, per, Wilson J. at p.314. [Emphasis added.]

59 It consequently suffices that a claimant show that the impugnedcontractual or legislative provision (or conduct) interferes with his orher ability to act in accordance with his or her religious beliefs in a


manner that is more than trivial or insubstantial. The question thenbecomes: what does this mean?

60 At this stage, as a general matter, one can do no more than saythat the context of each case must be examined to ascertain whetherthe interference is more than trivial or insubstantial. But it is impor-tant to observe what examining that context involves.

Arguably, compelling doctors to make PAD referrals places a coerciveburden on the exercise of their religious beliefs bringing them within theambit of s. 2(a) of the Charter. To anyone who believes in the sanctity oflife, the state’s compelling participation of a physician in the ending ofthat life triggers a unwarranted substantive interference in that doctor’sfreedom of conscience and religion. There are those health care profes-sionals who find PAD to be the antithesis of their mandate and view anyparticipation in the process, whether direct or indirect, to be repugnant.These doctors would argue that they entered the profession to savelives — not end them. They would argue that compelling them to make aPAD referral constitutes interference that is certainly not trivial and notinsubstantial. Furthermore, with the relatively small number of instanceswhere patients want PAD and having in mind the large number of physi-cians willing to participate in that process there seems to be no demon-strably justifiable reason why the legislature or regulatory bodies need tocompel reluctant doctors to participate.


[Indexed as: Dunn Estate v. TD Canada Trust]

Catherine Dunn, Catherine Jean Crowe (Nee Catherine Dunn,Jr.), Kenneth Terry Bullman, Margaret Elizabeth Beresford,Sandra Elizabeth Dunn, Christopher Robert Dunn, CarolynSuzanne Stuart, Gregory Lewis Dunn and Sandra Elizabeth

Dunn, Christopher Robert Dunn and Gregory Lewis Dunn asexecutors for the Estate of Robert Lewis Dunn, Kenneth

Bullman and Margaret Elizabeth Beresford as executors for theEstate of Mary Bullman (Plaintiffs) and TD Canada Trust, The

Canada Trust Company, TD Waterhouse, TD WaterhousePrivate Client Services (Defendants)

British Columbia Supreme Court

Docket: Vancouver S-096983

2016 BCSC 270

Betton J.

Heard: December 10-11, 2015

Judgment: February 19, 2016*

Estates and trusts –––– Estates — Construction of wills — Fundamental is-sues — Testator’s intentions given effect — Determination of intent —Wording of will –––– Testator’s will included direction to retain in form inwhich they were at time of death all investments in stocks and bonds — Partiessought judicial interpretation of clause in will — Trustee was required to retaintestator’s bonds and stocks in specie for lifetime of his daughters, subject toencroachment if balance of capital of estate was otherwise exhausted — If itwere so that testator’s intention was to allow but not obligate trustee to retainbonds and stocks, there would have been no reason to specifically referencebonds and stocks — Testator did not know at time of execution of will or codicilwhether he would, in fact, have bonds or stocks at date of his death — Testatorbegan his expression of his intentions with direction to retain bonds and stocksthat might exist at that time and proceeded to articulate what was to happen interms of conversion of balance of estate thereafter — Use of phrase “to retain”was more indicative of duty than power.

* A corrigendum issued by the court on March 7, 2016 has been incorporatedherein.

Dunn Estate v. TD Canada Trust Betton J. 47

Cases considered by Betton J.:

Ali Estate, Re (2014), 2014 BCSC 340, 2014 CarswellBC 532, 96 E.T.R. (3d)146 (B.C. S.C.) — referred to

Burke, Re (1959), 20 D.L.R. (2d) 396, [1960] O.R. 26, 1959 CarswellOnt 98,[1959] O.J. No. 706 (Ont. C.A.) — followed

Fairfoull (No. 2), Re (1974), 44 D.L.R. (3d) 765, 1974 CarswellBC 367 (B.C.S.C.) — referred to

Fairfoull Estate v. Bullman (1974), [1974] 6 W.W.R. 471, 18 R.F.L. 165, 1974CarswellBC 214 (B.C. S.C.) — referred to

Fairfoull Estate v. Bullman (1973), 41 D.L.R. (3d) 152, 1973 CarswellBC 314,[1973] B.C.J. No. 356 (B.C. S.C.) — referred to

R.P. Johnson Family Trust (Trustees of) v. Johnson (2014), 2014 BCSC 1889,2014 CarswellBC 2969, 1 E.T.R. (4th) 332 (B.C. S.C.) — referred to

Smith Estate, Re (2010), 2010 BCCA 106, 2010 CarswellBC 500, 3 B.C.L.R.(5th) 93, 55 E.T.R. (3d) 1, 284 B.C.A.C. 182, [2010] B.C.J. No. 370 (B.C.C.A.) — followed

TLC The Land Conservancy of British Columbia Inc. No. S36826, Re (2014),2014 BCCA 473, 2014 CarswellBC 3568, 2 E.T.R. (4th) 52, 379 D.L.R.(4th) 101, 65 B.C.L.R. (5th) 284, 364 B.C.A.C. 82, 625 W.A.C. 82, [2015] 6W.W.R. 69 (B.C. C.A.) — considered

Thiemer Estate v. Schlappner (2012), 2012 BCSC 629, 2012 CarswellBC 1210,77 E.T.R. (3d) 58 (B.C. S.C.) — referred to

Statutes considered:

Trustee Act, R.S.B.C. 1948, c. 345s. 15 — considered

Rules considered:

Supreme Court Civil Rules, B.C. Reg. 168/2009R. 9-7 — pursuant to

RULING on interpretation of clause in will.

R.A. Jarvis, for PlaintiffsA.S. MacKay, for Defendants

Betton J.:

Introduction1 Pursuant to Rule 9-7 of the British Columbia Supreme Court Civil

Rules, the parties seek judicial interpretation of a clause in the will ofRobert Fairfoull Sr. The specific language at issue is a direction to the


trustee “to retain in the form in which they are at the time of my death allinvestments in bonds and stocks...”.

Background2 The will was executed October 23, 1951. A codicil was executed De-

cember 30, 1954. The testator died August 14, 1957.3 The Canada Permanent Trust Company (now Canada Trust Com-

pany) was appointed executor and trustee and it obtained probate on No-vember 14, 1957. The defendants will be referred to collectively as the“Trustee”.

4 The plaintiffs are beneficiaries under the will and are unified in theirposition on this issue.

5 The testator was survived by two daughters, Mary Bullman and Cath-erine Dunn, and a son, Robert Fairfoull Jr. They were the principal bene-ficiaries of the will. The testator’s grandchildren were contingent benefi-ciaries. The ten plaintiffs/applicants are, by virtue of the terms of thewill, beneficiaries.

6 The evolution of events affecting the beneficiaries and their entitle-ments is described in the following paragraphs from the written submis-sions of the applicants:

14. Pursuant to the Will, upon the death of the Testator, Mary andCatherine were both vested beneficiaries with respect to their 1/3shares of the income of the Estate.

15. Mary and Catherine were also each contingent beneficiaries withrespect to a 1/3 share of the capital of the Estate to the extent neededfor their health or the health or education of their children. BothMary and Catherine encroached on the capital of the Estate for healthreasons on March 31, 2006 and March 23, 2009 respectively. Marywas paid $59,903.86 which represented the value of 1/3 of the capitalof the Estate as of that date. Catherine was paid $55,967.07 whichrepresented the value of 1/3 of the capital of the Estate as of thatdate. No other encroachments have been made on the capital of theEstate.

16. The Will provided that upon the deaths of each of the Daughters,1/3 of the residue of the capital of the Estate would be paid to who-ever they directed in their wills, or failure direction, to their children.

17. The Daughters are both now deceased. Mary’s will directed thatthe residue of her Estate be divided into two equal shares betweenher children (Ken and Margaret). Catherine’s will directed that theresidue of her estate be divided into two equal shares between her


daughter Catherine and her grandchildren, Christopher, Carolynn andGreg (in this application defined as the Great Grandchildren). There-fore, upon Mary’s death her children, Ken and Margaret, becamevested residual beneficiaries with respect to any remaining portion ofthe 1/3 share of the capital of the Estate. As of Catherine’s death,Catherine Crowe (Catherine’s surviving daughter) and the GreatGrandchildren became vested residual beneficiaries with respect toany remaining portion of the other 1/3 share of the capital of theEstate.

18. Because Mary and Catherine each encroached fully on the capitalof the Estate for health reasons, nothing remained from those por-tions to vest in the Grandchildren or Great Grandchildren (althoughthe claim is that if the Estate was properly managed and the invest-ments and bonds and shares retained, there ought to have been signif-icant capital remaining). However, because Robert Jr. died leavingno children, the Daughters or their children were entitled to his 1/3share of the Estate. Because the Daughters are now deceased, Kenand Margaret (Mary’s surviving children) are each entitled to a 50%of Robert Jr.’s 1/3 of the capital of the Estate and Catherine Crowe(Catherine’s surviving daughter) is entitled to the other 50% share.

19. Robert Jr.’s portion of the capital of the Estate remains in trustwith the Executor. Counsel for the Plaintiffs has requested that thatportion be paid out but the Trustee has refused.

7 At the time of the testator’s death the value of the estate was$91,386.95. Of that, $76,780.37 was made up of various stocks andbonds. The bonds were from BC Tel, Canada Savings Bonds and variouswater districts and cities or municipalities and school districts. Thestocks were in nine companies, including TD Bank and the ImperialBank.

8 The Trustee initiated court proceedings before this Court in or about1973. The Court was asked to resolve several questions relating to Rob-ert Fairfoull Jr.’s share of the estate on his death and the process to fol-low upon the death of one of the testator’s daughters. The decisions ofHutcheon J. are Fairfoull Estate v. Bullman (1973), 41 D.L.R. (3d) 152(B.C. S.C.); Fairfoull (No. 2), Re (1974), 44 D.L.R. (3d) 765 (B.C. S.C.);and Fairfoull Estate v. Bullman, [1974] 6 W.W.R. 471, 18 R.F.L. 165(B.C. S.C.) [Canada Permanent Trust Company]. The hearing consumedmultiple court days and all parties, including Mary Bullman and Cathe-rine Dunn, were represented. Although Hutcheon J. did make the obser-vation that portions of the will were “badly drawn” there is no indicationthat the issue before this Court was raised or considered at that time.


9 At various points in time between 1957 and 1979, Mary Bullman andCatherine Dunn received and/or approved the accounts of the Trusteeand transactions that it had undertaken in the administration of the estate.

10 Between approximately 1957 and 1973, the Trustee sold most of theinvestments that existed at the testator’s death. No issue has been takenin respect of those actions by any past or present beneficiaries prior tothe commencement of this action on September 23, 2009.

Issues and Positions of the Parties11 Both sides of this dispute agree that the issue before the Court is ap-

propriate for determination by way of summary trial. Each side has posedthe question for determination in this application.

12 The applicants suggest that the question to be answered is: Did the Testator direct the Trustee to “retain all [the Testator’s] in-vestments in bonds and stocks” in the form in which they were at thetime of the [Testator’s] death and hold those “investments in bondsand stocks” in trust until the death of one of the Testator’s daughters?

That question is paraphrased later in the submissions as being whetherthe Trustee was permitted to sell the investments in bonds and stocks thatexisted at the time of the testator’s death.

13 The defendants pose the question as follows: Does the Will require the Trustee to retain and hold the Testator’sbonds and stocks in specie for the lifetimes of his daughters, or doesthe Will give the Trustee the power to retain or sell as deemed advis-able in the Trustee’s absolute discretion?

14 Both are generally accurate articulations, although the defendants’more precisely captures the issue.

15 Both parties reviewed the authorities that provide guidance as to theproper approach to interpretation of wills and both agreed that the objec-tive is to determine the subjective intent of the testator. There is no dis-pute as to those principles but the parties argue the application of them tothe facts of this case should produce different results.

16 The full text of the clause in issue is as follows: 3. I GIVE, DEVISE AND BEQUEATH the whole of my property ofevery nature and kind and wheresoever situate, including any pro-perty over which I may have any power of appointment, to my saidTrustee, upon the following trusts, namely:


(a) TO RETAIN in the form in which they are at the time of mydeath all my investments in bonds and stocks, and to sell, callin and convert into money all the rest and remainder of myestate not consisting of money and trustee investments at suchtime or times, in such manner and upon such terms, and eitherfor cash or credit, or for part cash and part credit as my saidTrustee may in its discretion decide upon, with power anddiscretion to postpone such conversion of such Estate or anypart or parts thereof for such length of time as it may thinkbest, and I hereby declare that my said Trustee may retain thewhole or any portion of my Estate in the form in which it maybe at my death (notwithstanding that it may not be in the formof an investment in which trustees are authorized to investtrust funds and whether or not there is a liability attached toany such portion of my estate), for such length of time as mysaid Trustee may in its discretion deem advisable, and myTrustee shall not be responsible for any loss that may happento my estate by reason of it so doing.

17 The applicants say that the Trustee was required to retain the invest-ments in stocks and bonds as they were at the testator’s death, subject tolimited powers of encroachment for specific purposes and only after allother capital was exhausted.

18 The defendants argue that the Trustee had the power to retain thestocks and bonds but that it was not obligated to do so and had the dis-cretion to deal with those stocks and bonds and the remainder of the es-tate in its absolute discretion.

19 The applicants introduced evidence said to be of the surrounding cir-cumstances at the time of execution of the will. The defence takes theposition that the evidence is inadmissible. Based on my analysis below, Ido not find it necessary to address this issue as I am able to determine theintention of the testator without resort to the disputed evidence.

Analysis20 As noted, the parties agree as to the rules of construction to be em-

ployed in determining the intention of the testator. Generally, it is to be astaged approach where a second or subsequent step or method is onlyemployed where the previous has not allowed the court to determine thetestator’s intention.

21 The first approach is to look at the ordinary meaning of the wordsused within the four corners of the will. Counsel referred to several cases


that have articulated this in slightly different ways with each articulationproviding some assistance and clarity. Counsels’ presentation of the law,evidence and argument was concise and effective.

22 The defendants referenced TLC The Land Conservancy of BritishColumbia Inc. No. S36826, Re, 2014 BCCA 473 (B.C. C.A.) [TLC], aswell as others in these paragraphs from the defendants’ written argument:

44. In TLC The Land Conservancy of British Columbia v. The Uni-versity of British Columbia, 2014 BCCA 473the Court stated:

[45] The parties are also agreed as to the general princi-ples governing the interpretation of wills. The basic prin-ciple was articulated by the Supreme Court of Canadain National Trust Co. Ltd. v. Fleury, 1965 CanLII 18(SCC), [1965] S.C.R. 817 at 829:

In the construction of wills, the primary pur-pose is to determine the intention of the testa-tor and it is only when such intention cannotbe arrived at with reasonable certainty by giv-ing the natural and ordinary meaning to thewords which he has used that resort is to behad to the rules of construction which havebeen developed by the Courts in the interpreta-tion of other wills.

[46] Other relevant principles include the following state-ments from James MacKenzie, Feeney’s Canadian Law ofWills, loose-leaf, 4th ed. (Markham, Ont.: LexisNexis,2000):

§10.43 ... the most influential rule of construc-tion is that the court may construe the wordsused by the testator in their ordinary sense....

. . .

§10.60 The testator’s intention is to be gath-ered from a consideration of the will as awhole and not solely from the words used, say,in an unclear portion of the will. The ordinarymeaning rule and other rules of constructionare entirely subservient to the content of thewill. This idea is often expressed by sayingthat the testator’s intention is to be ascertained,first of all, from the four corners of the will.

. . .


§10.61 It is reasonable to presume that the tes-tator’s intention was that effect be given toevery word of his or her will ...

[Footnotes omitted.]

[47] It is appropriate to consider surrounding facts andcircumstances only if the language of the will is ambigu-ous: Feeney’s Canadian Law of Wills at §10.51.

45. There are a number of principles that the court utilizes in deter-mining the testator’s intention from the plain meaning of the wordsused within the four corners of the will:

(a) A cardinal principle of interpretation of a will is thateach clause must be construed in the context of the will asa whole. It is incorrect to interpret a single clause in a willwithout reference to the will as a whole.

TLC, supra, at para. 46;

Feeney’s Canadian Law of Wills, loose-leaf, 4th ed.

(Markham Ont: Lexis Nexis, 2000) at §10.60

(b) The court should interpret the will in a way whichgives effect to all the words used in a will, and reject in-terpretations that would render certain words or phrasesinoperable.

Stark, Re, [1969] 2 O.R. 881, 7 D.L.R. (3d) 313 (C.A.)

(c) In interpreting a will, the Court should not add or in-sert words unless it is “patently obvious” that there hasbeen an inaccurate expression by the testator of his or herintention, and the words that should be read in are clearlywhat the testator had in mind.

Laws v. Dobson Estate, 2006 BCSC 1519at para. 56

Brooks Estate, Re, 2011 BCSC 1606

(d) Where a testator repeats a word or phrase, it should bepresumed that the testator intended to express the sameidea.

Middlebro v. Ryan (1924), [1925] 1 D.L.R. 589, [1925]S.C.R. 10

(e) Where a testator uses different words or phrases, itshould be presumed that the testator intended to expressdifference ideas.

Lanterman Estate v. Lanterman (19[9]7), 18 E.T.R. (2d)254, 202 A.R. 285 (AB Surr. Ct.)


23 The applicants’ summary of the law on this point references somedifferent authorities as follows:

27. It is well accepted that the primary purpose in the interpretationof a will is to determine the intention of the testator. This ought to beaccomplished, where possible, based solely on the ordinary meaningof the words used within the four corners of the Will by reading it asa whole. If the testator’s intention can be determined in the context ofthe Will as a whole, it is unnecessary to look any further.

Smith v. Smith Estate (Trustee of), 2008 BCSC 1189(“Smith BCSC”)at paras. 30-31;

Smith v. Smith Estate (Trustee of), [2010] BCJ No. 370 (“SmithBCCA”) at paras. 18 & 28

Feeney’s Canadian Law of Wills (4th edition) (“Feeney’s”) at §10.60

28. The Supreme Court of Canada has commented that ordinarymeaning often refers to a reader’s first impression meaning:

Although the weight to be given to the ordinary meaningof words varies enormously depending on their context, inthe instant case, a textual interpretation supports a com-prehensive analysis based on the purpose of the Act. Mostoften, “ordinary meaning” refers “to the reader’s first im-pression meaning, the understanding that spontaneouslyemerges when words are read in their immediate context”(R. Sullivan, Sullivan and Driedger on the Constructionof Statutes (4th ed. 2002), at p. 21; Marche v. Halifax In-surance Co., [2005] 1 S.C.R. 47, 2005 SCC 6, at para.59). In Canadian Pacific Air Lines Ltd. v. Canadian AirLine Pilots Assn., [1993] 3 S.C.R. 724, at p. 735, GonthierJ. spoke of the “natural meaning which appears when theprovision is simply read through”.

Pharmascience Inc. v. Binet, 2006 SCC 48[at para. 30]

29. When interpreting a will, the court should consider the Will as awhole to garner the intention of the testator, rather than particularphrases in isolation.

Smith BCCA supra, at para. 30

Henderson Estate v. Honeybourn, [2003] B.C.J. No. 783 at paras. 11and 25

30. Where a clause is ambiguous and capable of two reasonable in-terpretations, one in harmony with the balance of the will and one atvariance to it, the former is to be preferred.

Feeney’s at §10.62


Re Galt, Royal Trust Co. v. Martin (1957), 12 DLR (2d) 140(BCCA) (“Galt”) at [142]

31. The law is that it is reasonable to presume that the Testator’sintention was that effect be given to every word of his or her will andthat none of the words be rejected. This principle is outlined in SmithBCSC as follows:

The court should make every effort to reconcile two ap-parently conflicting provisions of a will, rather than to ab-solutely ignore one or the other of them, or call either orboth of them void for uncertainty.

Feeney’s at §10.61

Smith BCSC at para. 34

32. Where in a will there is an omission that is plain on its face or anambiguity, the Court may apply common sense to make a change oraddition if the testator’s intention is clear.

Laws v. Dobson Estate, [2006] BCJ No. 2700 at para. [55]

24 Where the intention of the testator cannot be determined from the lan-guage used in the will, resort may be had to the so-called “armchair rule”of construction, which has been described in Smith Estate, Re, 2010BCCA 106 (B.C. C.A.) at para. 18, citing Burke, Re (1959), 20 D.L.R.(2d) 396 (Ont. C.A.) at 398, (1959), [1960] O.R. 26 (Ont. C.A.):

Each Judge must endeavour to place himself in the position of thetestator at the time when the last will and testament was made. Heshould concentrate his thoughts on the circumstances which then ex-isted and which might reasonably be expected to influence the testa-tor in the disposition of his property. He must give due weight tothose circumstances in so far as they bear on the intention of the tes-tator. He should then study the whole contents of the will and, afterfull consideration of all the provisions and language used therein, tryto find what intention was in the mind of the testator. When an opin-ion has been formed as to that intention, the Court should strive togive effect to it and should do so unless there is some rule or princi-ple of law that prohibits it from doing so.

25 It is also well-established that in an application of the armchair rule,direct extrinsic evidence of intent is generally not admissible: ThiemerEstate v. Schlappner, 2012 BCSC 629 (B.C. S.C.) at para. 50; Ali Estate,Re, 2014 BCSC 340 (B.C. S.C.) at paras. 18-19; and R.P. JohnsonFamily Trust (Trustees of) v. Johnson, 2014 BCSC 1889 (B.C. S.C.)atpara. 31.


26 Both parties in this application maintain that their respective positionson the proper interpretation of this will are established by the wordsalone and that I need not reference or rely on any other rule of construc-tion, including the armchair rule to interpret this will.

27 If, after an examination of the language used within the four cornersof the will and, if necessary, aided by the application of the armchairrule, the intention of the testator still has not been determined, other rulesof construction may be employed. As will be seen from the analysiswhich follows, I do not find it necessary to resort to additional rules ofconstruction; therefore, I will not address them further.

28 Clause 3(a) of the will quoted above is followed by clauses 3(b)through (h). Clauses (f) and (h) were modified by the codicil.

29 Clause 3(b) directs the Trustee to pay any debts or other obligations“out of the corpus of my Estate”.

30 Clause 3(c) directs the Trustee to pay $3,000 to a Mrs. Smith andprovide her with the complete furnishings of her bedroom if she is livingat the testator’s death. It is my understanding that Mrs. Smith was ahousekeeper.

31 Clause 3(d) directs the Trustee to convert into money all the remain-der of the estate not consisting of “money and investments authorized bythis my will” with a broad discretion to determine when to do so andabsolving the trustee of any liability attached to the exercise of thatdiscretion.

32 Clause 3(e) directs the Trustee to invest the proceeds of any sale orconversion of investments in “investments authorized by law for the in-vestment of funds of insurance companies”.

33 Clause 3(f) provides direction with respect to the use of the incomefrom the estate. It gives the Trustee a discretion to retain 10% of the netannual income against the possibility of “shrinkage of capital” but thento provide $35 per month to Mrs. Smith for her lifetime and to divide therest of the income into three equal parts and provide one of each of thoseparts to his children. This clause only entitles Robert Fairfoull Jr. to hisshare of the income provided he is no longer married to his wife. Thisprovision was held by Hutcheon J. to be void as contrary to public policy(Fairfoull Estate v. Bullman at 154; Fairfoull Estate v. Bullman at 474).

34 Clause 3(g) permits the Trustee to encroach on the capital of the es-tate, if the trustee deems it necessary “by reason of the ill health of any of


my children or of their families or for the education of any children ofmy children”.

35 Clause 3(h) provides that after the death of either of the testator’sdaughters, the Trustee is to divide the estate into three equal parts andpay one of those parts in accordance with the will of the deceased daugh-ter or otherwise to her issue. It goes on to direct that on the death of thesecond daughter, to distribute the second and third shares in a similarfashion unless Robert Fairfoull Jr. remains married to his wife. Consider-ing the testator’s son died prior to both daughters, Hutcheon J. found at156 that:

... the share of the son does not come into being until the death of thefirst of the daughters to die. Since the son predeceased both of thedaughters his prospective share goes share and share alike to the twodaughters. On the death of the first of them one part vests in the sur-viving daughter and the other in the children of the deceased daugh-ter per stirpes.

36 Clause 4 reiterates that the Trustee is exonerated from any responsi-bility for loss or damage which may be occasioned by retaining his in-vestments in the form in which the same may have been at the testator’sdeath or by reason of investments made in good faith.

37 The will employs different terms at different times in expressing thetestator’s intentions. The critical words that are the foundation of thisdispute, is a reference to “investments in bonds and stocks” in clause3(a). Immediately thereafter but still in the same clause there is a refer-ence to “money and trustee investments” and still further to “investmentin which trustees are authorized to invest trust funds”. Later in clause3(d), there is a reference to “money and investments authorized by thismy will” and then in clause 3(e) to “investments authorized by law forinvestment of funds of insurance companies”. Counsel agree that the ref-erence to trustee investments is a reference to the Trustee Act, R.S.B.C.1948, c. 345, s. 15 in effect at that time which restricted the trustee interms of the investments it was authorized to use unless a contrary inten-tion appeared in the will.

38 It is apparent that, subject to the discretion afforded the Trustee by theterms of the will, the testator’s intention was that, at the conclusion of theconversion process, the Trustee would hold three possible types ofassets:

1) the stocks and bonds that the testator held at the date of his death,if any (clause 3(a));


2) trustee investments (clause 3(a)); and

3) any monies accumulated would be invested in investments that in-surance companies could use (clauses 3(d) and (e)).

39 It is also clear that the testator intended to protect the Trustee fromany liability associated to the exercise of the discretion granted by thewill.

40 It must be understood when reading the will that the testator wouldnot have known at the time of the execution of the codicil whether in facthe would hold any stocks or bonds at the time of his death. Anythingother than those stocks and bonds that was not “money and trustee in-vestments” was to be converted into money by virtue of clauses 3(a) and(d) and invested in “investments authorized by law for the investment offunds of insurance companies” pursuant to clause 3(e).

41 The issue here is really a matter of identifying the testator’s intentionas to the scope of that discretion. I do not agree with the defendants thatthe intention was to allow but not obligate the Trustee to retain the bondsand stocks. If that were so, there would have been no reason to specifi-cally reference the bonds and stocks in the opening portions of clause3(a). That direction “to retain in the form in which they are at the time ofmy death all my investments in bonds and stocks” would be renderedmeaningless if the intention of the testator was simply to have the Trus-tee follow the direction that immediately follows those words and “con-vert into money all of the rest and remainder of my estate not consistingof money and trustee investments”. In other words, the clause wouldsimply have directed the Trustee to convert into money all of the estatenot consisting of money and trustee investments.

42 I reiterate that the testator did not know at the time of the execution ofthe will or the codicil whether he would, in fact, have bonds or stocks atthe date of his death. Recognition of that fact is responsive, at least inpart, to the defendants’ argument that none of the other provisions grant-ing the Trustee discretion to hold or dispose of any portion of the estatemake an exception for the bonds and stocks. In my view, the testatorbegan his expression of his intentions with the direction to retain thebonds and stocks that might exist at that time and proceeded to articulatewhat was to happen in terms of conversion of the balance of the estatethereafter.

43 The defendants say that the Trustee was given discretion to retain thestocks and bonds but there was no imperative attached to the word “re-tain” to indicate there was a duty to do so. I observe that the use of the


phrase “to retain” is more indicative of a duty than a power. While thedefendants note that clause 3(a) does not say that the Trustee “must re-tain” neither does it say that the Trustee “may retain”. The use of theword “retain” alone and unmodified and when read in context, in myview, is indicative of an obligation not a power. As noted above, how-ever, the proper construction must be based on the whole of the willrather than individual words.

44 The defendants, correctly in my view, point out that clause 3(a) maybe said to have three parts. Part one is the direction in respect of thestocks and bonds; part two is the power to sell and convert into moneyanything not consisting of money and trustee investments; and part threeis the discretion to retain or to sell the whole or any portion of the estate.As indicated, however, I do not agree that part one is a discretionarypower when read in context and if that direction to retain the stocks andbonds is to have any purpose.

45 The defendants stress that clauses 3(b) and (g) permit the Trustee toencroach on capital but make no specific reference to preserving thebonds and stocks. Instead they refer to conversion of the whole or anyportion of the estate. The applicants suggest that the intention was thatthe bonds and stocks be the last of any capital to be encroached upon, ifconsidered appropriate by the Trustee, but that encroachment was ulti-mately authorized if necessary for the purposes in clauses 3(g) or for ulti-mate distribution.

46 In the result, both the applicants’ and defendants’ positions require aninference regarding some aspect of the testator’s intention that is not spe-cifically expressed by the testator. If I accept the applicants’ interpreta-tion, the Trustee would be obligated to retain the bonds and stocks unlessencroachment was necessitated by the depletion of all other capital.

47 If I accept the defendants’ position, I must, in my view, ignore theexpressed intention in clause 3(a) or, at the least, read it down.

48 In my view, the former is the appropriate course and not the latter.49 I will now address some additional points raised by the defendants in

their argument challenging this conclusion.50 The defendants argue that the testator does not identify anything spe-

cial or unique about his bonds and stocks that would suggest a desire thatthey be retained for the lifetime of his daughters. To the contrary, thetestator saw fit to make a specific reference and direction to retain thebonds and stocks, if indeed any existed. The fact that he chose to do so


suggests that he did view them as being special or unique. Obviously, itwould have been preferable, in hindsight, if there had been more clarity.The task of interpretation must obviously still be undertaken in the faceof less than perfect drafting.

51 The defendants suggest that this conclusion ignores the portion ofclause 3(a) that follows the direction regarding bonds and stocks whichstates that the Trustee may retain the whole or any portion of the estate.As noted, the testator did not know if indeed there would be bonds andstocks and that portion of clause 3(a) must be read in light of the earlierportion and within the four corners of the will as a whole. In addition, thelanguage “may retain” is, in my view, a reference to everything otherthan the bonds and stocks in the opening direction referencing them.

52 The defendants argue that the applicants’ interpretation requires me todetermine “that the Testator, in referring to ‘money and trustee invest-ments’ intended to include ‘bonds and stocks’, as clause 3(a) directs allproperty that does not consist of ‘money and trustee investments’ to besold at the discretion of the Trustee.” In my view, however, that proposi-tion ignores the specific direction to retain the bonds and stocks and toconvert into money all of the rest of the estate not consisting of moneyand trustee investments, as described in para. 38 above.

Conclusion53 In the result, it is my finding that the Trustee was required to retain

the testator’s bonds and stocks in specie for the lifetime of his daughters,subject to encroachment if the balance of the capital of the estate wasotherwise exhausted.

Order accordingly.

Susin v. Susin 61

[Indexed as: Susin v. Susin]

Fermino Susin, Applicant and Dorino Susin, John Susin, AnitaRahman, Dianne Susin, Sister Stella Marie, Gloria Devinz,

Esther Susin and Theresa Lensborn, Respondents

Ontario Superior Court of Justice

Docket: Welland 3583/05

2016 ONSC 311

J.A. Ramsay J.


Judgment: January 13, 2016

Civil practice and procedure –––– Judgments and orders — Setting aside —Grounds for setting aside — Fraud, perjury or collusion –––– Litigationarose after father died, leaving his residence to be divided among his eight chil-dren, including E, J, F and R — J took position he was beneficial owner ofhouse — Order was made throwing J out of house and ordering it sold — Jvowed to, and did, deplete estate by bringing dozens of motions to which estatehad to respond — J was found to be vexatious litigant, but continued to bringproceedings through various siblings including E — E brought motion for direc-tions against executors F and R — Motion was dismissed as abuse of process —E brought motion to set aside dismissal of motion on basis that it was obtainedby fraud; F brought cross-motion — Motion dismissed — Fraud consisted of al-legedly false representations made by F to court — Alleged representations werenot misleading or deliberate — There was no evidence order was obtained byfraud or in contempt of court.

Judges and courts –––– Contempt of court — Forms of contempt — Con-tempt in face of court –––– Litigation arose after father died, leaving his resi-dence to be divided among his eight children, including E, J, F and R — J tookposition he was beneficial owner of house — Order was made throwing J out ofhouse and ordering it sold — J vowed to, and did, deplete estate by bringingdozens of motions to which estate had to respond — J was found to be vexatiouslitigant, but continued to bring proceedings through various siblings — Ebrought motion for directions against executors, F and R — Motion was dis-missed as abuse of process — E brought motion to set aside dismissal; F broughtcross-motion to find E and J in contempt — J disrupted hearing by interruptingrepeatedly — After number of warnings J was found in contempt instanter andcommitted to prison overnight — Motion against J adjourned to date to be ar-ranged, and to be heard by different judge.


Judges and courts –––– Contempt of court — Forms of contempt — Disobe-dience of court — Mandatory orders –––– Litigation arose after father died,leaving his residence to be divided among his eight children, including E, J, Fand R — J took position he was beneficial owner of house — Order was madethrowing J out of house and ordering it sold — J vowed to, and did, depleteestate by bringing dozens of motions to which estate had to respond — J wasfound to be vexatious litigant, but continued to bring proceedings through vari-ous siblings — F and R were executors of father’s estate — E brought motionfor directions against executors, which was dismissed as abuse of process — Ebrought motion to set aside dismissal; F brought cross-motion to find E and J incontempt — Motion dismissed on other grounds; cross-motion dismissed inpart — J used E as agent on motion and facilitated his continuing campaignagainst estate in contravention of court order — However, it was not clear that Eintended to subvert administration of justice — E was not in contempt of court,but she was not entitled to costs as there was good reason to suspect her ofcontempt — E not to bring any further motions with respect to estate withoutleave of court and without having satisfied outstanding orders for costs againsther.

Cases considered by J.A. Ramsay J.:

Susin v. Susin (2014), 2014 ONCA 733, 2014 CarswellOnt 15019, 2 E.T.R.(4th) 175, 379 D.L.R. (4th) 308, 327 O.A.C. 61 (Ont. C.A.) — considered

MOTION by beneficiary to set aside order dismissing her motion for directionsagainst executors; CROSS-MOTION by executor to find two beneficiaries incontempt.¶

Ms M. Hoy for ApplicantMr D. Freudman for Esther SusinJohn Susin for himself

J.A. Ramsay J.:

1 Esther Susin moved before me on September 23, 2015 for orders fordirections against Fermino Susin and Habibur Rahman, who were thenthe executors of her father’s estate. Rahman has since been removed.Fermino remains. I dismissed her motion as an abuse of process withcosts. I later gave reasons at 2015 ONSC 5896. Esther Susin now movesto set aside my order of September 23, 2015 on the ground that it wasobtained by fraud. She also moves to cite Fermino Susin for contempt.She moved to cite Ms Hoy for contempt, but her counsel abandoned thatmotion in oral argument, and he saved his client from exposure to a puni-tive cost order by doing so. Esther Susin relies on the affidavit of her

Susin v. Susin J.A. Ramsay J. 63

brother, John Susin, who was found to be a vexatious litigant in 2008 byreason of his constant repetitive and abusive motions involving the estateof the parties’ father. Esther also moves to settle my order of September23. Finally, Fermino Susin, the executor, has filed cross-motions askingfor findings of contempt of court against Esther and John.

2 I dismissed Esther’s motions at the beginning of the day without ref-erence to the merits because she did not appear in person or by counsel.She did not have a lawyer of record at that point. Before hearing thecross motions, I got a message that Mr Freudman telephoned to say thathe was delayed by the weather. I took a break, after which Mr Freudmanappeared and the motions were argued on their merits. I dismissed Es-ther’s motions with reasons to follow and ordered her to pay $3,500costs. Mr Freudman’s retainer is limited to arguing today’s motions.

Esther Susin’s motions

Settling the order of September 23, 20153 The parties agree that the order of September 23, 2015 should go in

terms stating that the motion for directions is dismissed, with $2,500costs payable by Esther forthwith.

Setting aside the order of September 23, 2015 for fraud; contempt byFermino Susin

The history of the litigation4 The history of the litigation is summarized in Susin v. Susin, 2014

ONCA 733 (Ont. C.A.). In briefest recapitulation, John Susin (senior)died in 1997, leaving his residence to be divided among his 8 children,subject to a life estate in his wife. John Susin (junior) took the positionthat he was the beneficial owner of his father’s house and continued tolive in the house long after his parents were both dead. One executor,Fermino Susin, opposed John. The other, Dorino Susin, supported him.In 2007, Turnbull J. rejected John’s claim, threw him out of the houseand ordered the house to be sold. He removed Dorino as executor andordered that the proceeds of sale of the house be distributed among thebeneficiaries subject to a first charge for the estate’s costs. The housewas sold and the proceeds after expenses went into a trust fund. FerminoSusin deposes, and I accept, that when he was trying to get John out ofthe parental home, John said that he would deplete the estate. John hassucceeded in doing this. John has brought dozens of motions to whichthe estate has been obliged to respond. For example, seven judges were


required to rule that the estate questions should be heard in Welland, asopposed to anywhere else. The system is hard pressed to cope with theexceptional litigant who is both energetic and ruthless.

5 After paying legal fees occasioned by successfully defending John’slitigation, about $30,000 is still in the trust account, but Ms Hoy, theaccountant and the executor are owed at least that much. There are sev-eral cost orders outstanding against John, Dorino and now Esther. Johnowes the estate occupation rent ordered by Turnbull J. and Dorino Susinguaranteed that debt. This debt, too, is outstanding. The executor reason-ably believes that he ought not to pass his accounts and wind up the trustwithout first making an effort to collect these debts.

6 In 2008 Quinn J. declared John a vexatious litigant and ordered thathe not commence any judicial proceeding without leave of the court andthat he could bring no proceeding against the estate without first satisfy-ing all outstanding cost orders. John then began having his siblings filemotions for him, motions that he would argue as their agent or as amicuscuriae. On January 10, 2014 I ordered that John could not appear asagent for his siblings or as amicus curiae. Thereafter John continued liti-gating through siblings but always behind the scenes. In the present case,Dorino Susin appeared for Esther to adjourn what purported to be hermotion made through her counsel, Mr Mostyn. Mr Mostyn later deposedthat he did not consent to the filing of this motion under his name. Johnhad initially consulted him. He told John that he would not act for himand he was never retained by Esther. Mr Mostyn has been a respectedmember of a regulated profession for 50 years. His evidence isconvincing.

The alleged fraud7 The fraud is said to consist of several allegedly false representations

made to me by Fermino Susin, the executor, in his affidavit or throughhis lawyer. The deliberate misleading of the court is the basis of the al-leged contempt. I deal with them in order.

Fermino’s assertion that the motion was res judicata8 In alleging that the motion was res judicata, Fermino was talking

about a conclusion of law, not a representation of fact. Whether I wasright or wrong to say that the motion was res judicata, there was no mis-representation of fact, let alone a deliberate misrepresentation.


Ms Hoy’s assertion that Dorino Susin was the moving party on Esther’smotion

9 Esther Susin is the moving party. But in her oral submissions, MsHoy recognized that. She said, “I think Dorino Susin and John Susin aremoving under her name to attempt to do indirectly what they can’t dodirectly.” Ms Hoy was making a legal submission. Nothing in it was mis-leading. There was no fraud.

Ms Hoy’s statement “Justice Ramsay made a vexatious order againstDorino Susin.”

10 Of course, there is no such thing as a “vexatious order.” That is sim-ply a form of oral shorthand. I did not make an order against DorinoSusin under the Vexatious Litigants Act, nor did I find him in general tobe a vexatious litigant. But as part of his sentence for contempt of court, Iordered him to take no further steps in this litigation. The Court of Ap-peal varied that order by adding the provision “without leave of thecourt.” So Ms Hoy’s oral utterance accurately captured what I had doneand was in no way misleading.

Ms Hoy’s submission that the Susins brought the same motion inNewmarket to be heard the same day

11 Ms Hoy, in response to a question from the bench, said, “What theydo, Your Honour, is they simultaneously put it in two different courtsbecause they know I can’t be in two places at once.” What she said wasessentially supported by Fermino Susin’s affidavit. Fermino referred to“a” motion, without specifying its subject matter. John Susin deposesthat he moved in Newmarket for leave to file a motion while Estherbrought the motion in Welland, and says, “The two motions are entirelyunrelated.”

12 Dorino Susin and I had the following exchange on September 23,2015:

THE COURT: Why did you do that, Mr Susin? Why did you make twomotions in different courts on the same day, what is the purpose ofthat? Mr Susin, I asked you a question.

MR DORINO SUSIN: I did that on the advice of some help.13 John deposes that Dorino did not mean to say this. He gave the wrong

answer because of his health. In my assessment, the answer was respon-sive and coherent. I take it as an admission that Dorino was involved inboth and I infer that John was the “help.”


14 The motion in Newmarket is certainly not unrelated to the presentproceedings. The effect of the motions was to oblige Ms Hoy to be intwo places at once. John knew about both. I infer that John scheduledboth. Correspondence to the trial coordinator in the file purporting to befrom Esther is signed “E. Susin per J.” Ms Hoy cannot be taken to havespoken dishonestly when she claimed that the two motions were broughtat the same time as a tactic. That was just what it looked like.

15 There is no evidence that my order of September 23, 2015 was ob-tained by fraud or in contempt of court. The motion to set it aside isdismissed.

The executor’s cross-motions

The motion to cite John Susin for contempt16 John Susin disrupted the hearing by interrupting Ms Hoy’s oral sub-

missions repeatedly. After a number of warnings I found him in con-tempt instanter and committed him to prison overnight. I adjourned thehearing of the motion against John to a date to be arranged and directedthat it be heard by a different judge.

The motion to cite Esther Susin for contempt17 Esther Susin is said to have breached the order of Quinn J. Quinn J.

found John Susin to be a vexatious litigant and prohibited him from insti-tuting proceedings without leave of the court and, in the case of proceed-ings against the estate, without satisfying outstanding cost orders. It issubmitted that Esther, by allowing John to sue in her name, was deliber-ately contravening that order and undermining the fair administration ofjustice.

18 Clearly, Esther used John as an agent on the present motion, althoughnot as an agent to appear in court. John went to see Mr Mostyn in anunsuccessful attempt to retain him for Esther’s motion. John drafted andswore the affidavit that was filed for the motion to set aside my order ofSeptember 23, 2015. Esther’s factum for today’s appearance was takenverbatim from John’s affidavit. I infer that John sent Dorino to speak tothe motion on September 23.

19 In so acting, Esther facilitated John’s continuing campaign against theestate and contravention of Quinn J.’s order. I am not sure, however, thatshe did so intending to subvert the administration of justice. UnlikeDorino, she may have thought that she had some prospect of legitimatelyrecovering some money from the estate. As of today, she can no longer


be under any such misapprehension. I dismiss the motion to find Estherin contempt of court. She is not, however, entitled to costs. There wasgood reason to suspect her of contempt and she deliberately chose toskate on thin ice.

Case management orders20 Dealing with these motions gives me reason to believe that procedu-

ral orders are necessary to attempt to bring this matter to a just and expe-ditious conclusion. There is no point in any further motion for directionsuntil the executor has had a chance to attempt to collect on the estate’sremaining debts, which just today have increased by $6,000. Once theexecutors are ready, there is no reason why any protracted proceedingsshould ensue. The trust account records and the bills of the lawyers, ac-countant and executor will tell the whole story. Of my own motion, Iorder:

a. Esther Susin shall not bring any further motions with respect tothe estate without leave of the court and without having satisfiedthe outstanding orders for costs against her;

b. When the executor moves to pass his accounts, the following pro-cedure shall apply unless otherwise ordered by the motion judge:

i. any objecting party may reply in writing by submitting asworn affidavit not exceeding four pages in length andwritten argument not exceeding the same length;

ii. there will be no cross examination on the executor’s affida-vit or affidavits without leave of the court.

21 This order may be taken out without the approval of John Susin.

Order accordingly.


[Indexed as: Kong v. Kong]

Matthew Tak-Ming Kong, Tak-Shing Kong, Jack Tak-FungKong, Tak-Ching Kong, Plaintiffs and Jackson Tak-Shun Kong,

Russell Graham Lew, Executor of the Estate of Shui PingKong, Irene Oi-Lin Kong, and Steven Tak-Choi Kong,

Defendants


Docket: Vancouver S150452

2016 BCSC 215

Sharma J.


Judgment: February 12, 2016

Estates and trusts –––– Estates — Dependants’ relief legislation — Practiceand procedure — Costs — Payable by claimant –––– Testator changed willand transferred property to youngest son before he died — Other children al-leged property transfers and changes to will were invalid because testator wasunder undue influence — Other children asserted testator failed to make ade-quate provision for them — Court concluded that testator did not make adequateprovision because he did not exhaust his moral duties to them — Will was al-tered such that two of plaintiffs were entitled to five per cent share of estate —Claim of undue influence was dismissed — Property transfers were found to begifts and no resulting trust was created — Parties made submissions as tocosts — Defendant was awarded costs on usual scale — It was appropriate casefor defendants to recover all their costs from plaintiffs — Two plaintiffs leastinvolved in litigation were successful so their success was not due to their ef-forts — Neither testator nor beneficiaries of his will were cause of litigation andas such, costs were not awarded from estate — Award of special costs was notjustified — Although there was animus among children, there was not directlink between that animus and positions taken in litigation.

Cases considered by Sharma J.:

Chang Estate v. Chang (2014), 2014 BCSC 1243, 2014 CarswellBC 1955, 3E.T.R. (4th) 311 (B.C. S.C.) — considered

Fotheringham v. Fotheringham (2001), 2001 BCSC 1321, 2001 CarswellBC2148, 13 C.P.C. (5th) 302, [2001] B.C.J. No. 2083, [2001] B.C.T.C. 1321(B.C. S.C.) — considered

Garcia v. Crestbrook Forest Industries Ltd. (1994), 119 D.L.R. (4th) 740, 9B.C.L.R. (3d) 242, 14 C.C.E.L. (2d) 84, 41 C.P.C. (3d) 298, (sub nom.

Kong v. Kong Sharma J. 69

Garcia v. Crestbrook Forest Industries Ltd. (No. 2)) 45 B.C.A.C. 222, (subnom. Garcia v. Crestbrook Forest Industries Ltd. (No. 2)) 72 W.A.C. 222,1994 CarswellBC 1184, [1994] B.C.J. No. 2486 (B.C. C.A.) — referred to

Gold v. Gold (1993), 82 B.C.L.R. (2d) 180, 106 D.L.R. (4th) 452, 49 R.F.L. (3d)56, 20 C.P.C. (3d) 61, (sub nom. Gold v. Gold (No. 2)) 32 B.C.A.C. 287,(sub nom. Gold v. Gold (No. 2)) 53 W.A.C. 287, [1993] B.C.J. No. 1792,1993 CarswellBC 216 (B.C. C.A.) — considered

Kouwenhoven Estate v. Kouwenhoven (2001), 2001 BCSC 1402, 2001 Car-swellBC 2234, 14 C.P.C. (5th) 154, [2001] B.C.T.C. 1402, [2001] B.C.J.No. 2070 (B.C. S.C.) — considered

Lee v. Lee Estate (1993), 84 B.C.L.R. (2d) 341, 50 E.T.R. 297, 1993 Car-swellBC 288, [1993] B.C.J. No. 1894 (B.C. Master) — referred to

McLean v. Gonzalez-Calvo (2007), 2007 BCSC 648, 2007 CarswellBC 991, 36E.T.R. (3d) 126, [2007] B.C.J. No. 956 (B.C. S.C. [In Chambers]) —considered

Stanton v. Stanton Estate (2008), 2008 BCSC 470, 2008 CarswellBC 751, 39E.T.R. (3d) 154 (B.C. S.C.) — considered

Stanton v. Stanton Estate (2008), 2008 BCCA 362, 2008 CarswellBC 1942, 43E.T.R. (3d) 1 (B.C. C.A.) — considered

Vielbig v. Waterland Estate (1995), 1 B.C.L.R. (3d) 76, [1995] 3 W.W.R. 515, 6E.T.R. (2d) 1, 121 D.L.R. (4th) 485, 54 B.C.A.C. 219, 88 W.A.C. 219, 1995CarswellBC 8, [1995] B.C.J. No. 170, 1995 BCCA 2544 (B.C. C.A.) — re-ferred to

Westsea Construction Ltd. v. 0759553 B.C. Ltd. (2013), 2013 BCSC 1352, 2013CarswellBC 2293 (B.C. S.C.) — followed

ADDITIONAL REASONS concerning costs to judgment reported at Kong v.Kong (2015), 2015 BCSC 1669, 2015 CarswellBC 2646 (B.C. S.C.), finding thattestator did not make adequate provision for two of his children in his will.

R.A. Kasting, for PlaintiffsNo one for Defendant, Russell Graham Lew, Executor of the Estate of Shui Ping

KongT. Brayer, for Defendant, Jackson Tak-Shun KongNo one for Defendants, Irene Oi-Lin Kong and Steven Tak-Choi Kong

Sharma J.:

1 This is a decision about costs relating to the judgment indexed atKong v. Kong, 2015 BCSC 1669 (B.C. S.C.). The opening paragraphsummarizes the issues in that case:

[1] This litigation arises from a dispute about changes made to a pa-triarch’s will and the transfer of property to his youngest son shortly


before he died. Some of the deceased’s other children allege the pro-perty transfers and changes to the will are invalid because the de-ceased was under undue influence. They also rely on the Wills Varia-tion Act, R.S.B.C. 1996, c. 490 to say the patriarch failed to makeadequate provision for them. The beneficiary of the property trans-fers and altered will says his father was of sound mind, met his moralobligations to all his children, [and] was not under any undueinfluence.

2 The deceased, Shui Ping Kong (Mr. Kong) and his wife (who pre-deceased him) had seven children: six sons and one daughter. All but oneof the children testified at trial. Four of the sons were the plaintiffs. Thedaughter and the youngest son were defendants. Because they share thesame last name, I refer to Mr. Kong’s children by their first names, not-withstanding they are all adults and no disrespect is conveyed by doingso.

3 I concluded that with regard to two of the plaintiffs, Mr. Kong hadnot made adequate provision because he had not exhausted his moral du-ties to them. Accordingly, I altered the will such that each of those twoplaintiffs were entitled to a 5% share of the estate. I dismissed the claimof undue influence, and found that the property transfers from the de-ceased to his youngest son were gifts and therefore no resulting trust wascreated.

4 Counsel for the plaintiffs suggest that because the success was split,no award should be made for costs; in the alternative if an award ismade, they submit I must factor into that award the fact that two of thefour plaintiffs were successful, even if only modestly. The defendant,Jackson Kong, submits he should be awarded special costs or, in the al-ternative, special costs in relation to that part of the litigation that dealtwith undue influence, and usual scale for the rest. It is also his positionthat the costs should not be awarded from the estate.

Should the estate pay the costs?5 I agree that any order for costs ought not to come out of the estate.

The parties agreed that a helpful case on this issue is Chang Estate v.Chang, 2014 BCSC 1243 (B.C. S.C.) [Chang Estate]. That case reiter-ated the usual rule that costs follow the event such that a substantiallysuccessful litigant is entitled to recover costs from the unsuccessful op-posing party, unless a court otherwise orders, relying on Fotheringham v.Fotheringham, 2001 BCSC 1321 (B.C. S.C.) and Gold v. Gold (1993),106 D.L.R. (4th) 452 (B.C. C.A.).


6 In Chang Estate, Justice Dardi also noted that there are some uniqueprinciples that apply in certain types of estate litigation. For instance,where the litigation has been brought about by the will-maker’s own con-duct, such as ambiguous wording in the will, generally all parties shouldbe awarded costs out of the estate: Lee v. Lee Estate (1993), 84 B.C.L.R.(2d) 341 (B.C. Master); Vielbig v. Waterland Estate (1995), 121 D.L.R.(4th) 485 (B.C. C.A.). At paragraph 36 Justice Dardi summarized thelegal principles:

In probate actions, if the court finds either the will-maker or the re-siduary beneficiary was “the cause” of the litigation or the litigationwas in some way encouraged by the will-maker’s conduct, for exam-ple, when there is confusion or uncertainty surrounding his or hertestamentary documents, generally the costs of all parties will be paidfrom the estate. If the court finds challenge to the will was reasona-ble, for example because it was precipitated by highly “suspiciouscircumstances” surrounding the preparation of the will, typically thecourt will not make an order for costs against the unsuccessful party.With the exception of these prescribed circumstances, an action relat-ing to the validity of a will is properly characterized as an adversarialdispute among the affected parties and the usual rule that costs fol-low the event will apply. In keeping with this analytical approach,the current judicial trend in this province has been to characterize anaction over the validity of a will as an adversarial dispute among theaffected parties: Mawdsley; Woodward v. Grant, 2007 BCSC 1549 atpara. 16.

7 Although I concluded that Mr. Kong had not exhausted his moralduty towards Tak-Ching (known as Tak) and Tak-Shing (the two suc-cessful plaintiffs), I was mindful that Mr. Kong’s clear intent was toleave everything to Jackson. I awarded each of Tak and Tak-Shing amodest 5% share of Mr. Kong’s estate. I rejected the plaintiffs’ claimsbased on undue influence.

8 Taking into account the factors reviewed by Justice Dardi in ChangEstate, I am not satisfied that either Mr. Kong or the beneficiaries of hiswill are the cause of the litigation. As such, costs should not be awardedfrom the estate.

Special Costs9 I am not satisfied that Jackson has established that an award of spe-

cial costs for any part of the action is justified. He relies on the followingcases to assert his entitlement to special costs: Garcia v. Crestbrook


Forest Industries Ltd., [1994] B.C.J. No. 2486 (B.C. C.A.); Chang Es-tate; McLean v. Gonzalez-Calvo, 2007 BCSC 648 (B.C. S.C. [In Cham-bers]); and Stanton v. Stanton Estate, 2008 BCSC 470 (B.C. S.C.).

10 There is little dispute about the legal principles on special costs. Theaward should only be made in exceptional circumstances, which gener-ally include those where the court concludes an element of deterrence orpunishment is necessary because the litigant has engaged in reprehensi-ble conduct. “Reprehensible” is understood to mean scandalous or outra-geous, as well as milder forms of misconduct that deserve rebuke or re-proof: Chang Estate at paras. 41-42. In paragraph 43 of Chang Estate,Justice Dardi goes on to set out a summary of the principles from JusticeGropper’s decision in Westsea Construction Ltd. v. 0759553 B.C. Ltd.,2013 BCSC 1352 (B.C. S.C.):

In Westsea Construction Ltd. v. 0759553 B.C. Ltd., 2013 BCSC1352, Madam Justice Gropper canvassed the jurisprudence on specialcosts and provided a helpful distillation of the key principles:

[73] ... Based upon my review of the authorities, I havederived the following principles for awarding specialcosts:

a) the court must exercise restraint in awarding spe-cials costs;

b) the party seeking special costs must demonstrateexceptional circumstances to justify a special costsorder;

c) simply because the legal concept of “reprehensi-bility” captures different kinds of misconduct doesnot mean that all forms of misconduct are encom-passed by this term;

d) reprehensibility will likely be found in circum-stances where there is evidence of improper mo-tive, abuse of the court’s process, misleading thecourt and persistent breaches of the rules of pro-fessional conduct and the rules of court thatprejudice the applicant;

e) special costs can be ordered against parties andnon-parties alike; and

f) the successful litigant is entitled to costs in accor-dance with the general rule that costs follow theevent. Special costs are not awarded to a success-


ful party as a “bonus” or further compensation forthat success.

11 In McLean, the court refers to two lines of cases where special costshave been awarded against the plaintiff: (i) estate cases alleging undueinfluence, and (ii) cases bound to fail: McLean at para. 15. On my read-ing of all of the cases referred to me, however, no one factor is determi-native in any case; rather, the court must examine all the circumstancesin their proper context.

12 In relation to the first line of cases referred to in McLean, JusticeMacKenzie discusses a number of cases where special costs wereawarded because of an unsuccessful allegation of undue influence. Thedefendants point to Kouwenhoven Estate v. Kouwenhoven, 2001 BCSC1402 (B.C. S.C.) (referred to in McLean at paras. 21-22) where the courtcommented that the plaintiff’s decision to litigate was motivated by dis-like towards the defendant. That dislike was found to be an insufficientbasis upon which to base litigation; special costs were awarded to thedefendant. Jackson draws a parallel to this case because the unsuccessfulplaintiffs (Matthew and Jack) had animus towards Jackson (see decisionafter trial para. 122).

13 In my view, the plaintiff’s conduct in Kouwenhoven Estate was moreblameworthy. In addition to the allegation of undue influence, the plain-tiff knew from a medical report that the testator had capacity to make thewill, but still pursued a claim that the testator lacked capacity when thewill was signed. The plaintiff also alleged forgery, and the judge in thatcase concluded the plaintiff’s case was based on “speculation and innu-endo”: Kouwenhoven Estate at para. 2.

14 The case before me was not as extreme. Although there was animusamongst the brothers, I do not see as direct a link between that animusand positions taken in this litigation. While I made findings that questionthe credibility of Matthew and Jack with regard to certain events in thecase, I did not find their conduct or testimony to be reprehensible. It istrue that Matthew made serious allegations impugning the character ofhis father, but those were made in relation to the prior litigation over whoshould be appointed committee of Ms. Kong before she died. That litiga-tion (and some other events) led to significant disharmony between Mat-thew and Mr. Kong.

15 I also think it is relevant to consider comments about Jackson’s con-duct. I noted (at paras. 120-121) that Jackson did not communicate withthe plaintiffs when his father’s cancer returned, and was evasive about


his father’s whereabouts when his mother died. I found his behaviourdemonstrated poor judgment, but was not malicious. Nonetheless, I thinkthat behaviour is relevant to any assessment of Matthew and Jack’sconduct.

16 In relation to the second line of cases referred to above, the Court ofAppeal stated in Garcia that an action that has little merit does not justifyon its own an award of special costs. Instead the litigant must provesomething more, such as improper allegations of fraud or improper con-duct: Garcia at para. 23.

17 The defendant relies on the Stanton case for the proposition thatwhere an allegation of undue influence fails because of a complete lackof evidence, special costs are warranted. However, the Court of Appealoverturned the trial judge on the award of special costs: Stanton v.Stanton Estate, 2008 BCCA 362 (B.C. C.A.). I acknowledge that reversalmay have been because the issue was not pursued in the Court of Appealwith the same vigour as it was in front of the trial judge but the awardwas nevertheless overturned (at para. 12). More importantly, in this caseI do not think the plaintiffs’ claim of undue influence completely lackedevidence.

18 In Chang Estate, Justice Dardi noted at para. 50 that: [w]hether a failed allegation of undue influence is sufficiently repre-hensible that it warrants the court’s condemnation through a specialcosts award depends on the particular circumstances.

19 In Chang Estate special costs were awarded, but conduct in that caseincluded the failure of the litigant to show up at trial, and ignoring orfailing to comply with court directions.

20 Taking all these considerations into account, in my view this is not anappropriate case for an award of special costs.

Is an award of costs in favour of the defendant justified?21 The plaintiffs suggested that because success was split, there ought to

be no award for costs in this case. I do not agree. In my mind this is anappropriate case for the defendants to recover all their costs from theplaintiffs.

22 Although two of the plaintiffs were successful, in my view they werethe two plaintiffs that were least involved in the litigation, so their suc-cess was not due to their efforts. In particular, one of them was in HongKong and I found him to be disabled. It is therefore questionable how


much involvement he had with the litigation. At paragraph 94, I observedthat the two successful plaintiffs “presented as somewhat unsophisticatedpeople” compared to the other two plaintiffs.

23 Moreover Tak and Tak-Shing’s success turned on whether Mr. Konghad exhausted his moral obligation to his adult children. In the discussionof the testator’s moral duty at paragraphs 75-82, I noted some lack ofclarity in the law regarding what type of evidence can be viewed, andwhether the test was completely objective or not. The plaintiffs arguedthe evidence relevant to the issue was restricted and supported their posi-tion. I disagreed and determined that Mr. Kong’s statement to Mr. Lewwas not the only evidence I could consider. Yet, two of the plaintiffssucceeded notwithstanding their approach to the evidentiary issue wasone I did not accept. This was a subtlety that only emerged during finalsubmissions and deliberation.

Conclusion24 In all these circumstances, I find it appropriate that the defendant

Jackson Kong be awarded costs from the plaintiffs on the usual scale.

Order accordingly.


[Indexed as: Royal Trust Corp. of Canada v. University ofWestern Ontario]

In the Estate of Victor Hugh Priebe, Deceased

Royal Trust Corporation of Canada, Applicant and TheUniversity of Western Ontario, University of Windsor, WindsorPublic Library, Hotel-Dieu Grace Healthcare, Windsor Regional

Hospital and Office of the Public Guardian and Trustee,Respondents

Ontario Superior Court of Justice

Docket: 2017/15 ES

2016 ONSC 1143

A.K. Mitchell J.

Heard: February 3, 2016

Judgment: February 16, 2016

Estates and trusts –––– Estates — Legacies and devises — Conditionalgifts — Grounds for invalidity — Public policy grounds — Miscellane-ous –––– Testator’s will established several charitable trusts — One provisionsought to provide awards and bursaries subject to restrictions — Recipients oftwo bursaries had to be caucasian, single and heterosexual and female recipientscould not be feminist — Trustee sought opinion, advice and direction of courton questions arising out of restrictive provision in last will and testament —Will did not provide trustee with discretion to choose whether or not to dispersefunds for purposes of restrictive provision — Restrictive provision of will wasvoid as being contrary to public policy by virtue of it being discriminatory onbasis of race, gender and sexual orientation — Restrictive provision could not besaved by applying doctrine of cy pres — Will required that upon court’s declara-tion that qualifications were void as being contrary to public policy charitabletrust failed in its entirety and was to be deleted — Beneficiaries of other charita-ble trusts established in will were to receive funds.

Cases considered by A.K. Mitchell J.:

Canada Trust Co. v. Ontario (Human Rights Commission) (1990), 69 D.L.R.(4th) 321, 12 C.H.R.R. D/184, 74 O.R. (2d) 481, 38 E.T.R. 1, (sub nom.Leonard Foundation Trust, Re) 37 O.A.C. 191, 1990 CarswellOnt 486,[1990] O.J. No. 615 (Ont. C.A.) — followed

Goodman Estate v. Geffen (1991), [1991] 5 W.W.R. 389, 42 E.T.R. 97, (subnom. Geffen v. Goodman Estate) [1991] 2 S.C.R. 353, 125 A.R. 81, 14W.A.C. 81, 80 Alta. L.R. (2d) 293, (sub nom. Geffen v. Goodman Estate) 81

Royal Trust Corp. of Can. v. University of Western Ont. A.K. Mitchell J. 77

D.L.R. (4th) 211, 127 N.R. 241, [1991] S.C.J. No. 53, 1991 CarswellAlta 91,1991 CarswellAlta 557, EYB 1991-85679 (S.C.C.) — referred to


Charities Accounting Act, R.S.O. 1990, c. C.10s. 10 — referred to

Trustee Act, R.S.O. 1990, c. T.23s. 60 — referred to

Rules considered:

Rules of Civil Procedure, R.R.O. 1990, Reg. 194R. 14.05(3)(a) — consideredR. 14.05(3)(b) — consideredR. 14.05(3)(d) — considered

RULING on questions arising out of restrictive provision in last will andtestament.

B. Duewel, for ApplicantD. Desante, for Respondent, Office of the Public Guardian and Trustee

A.K. Mitchell J.:

Nature of the Application1 Pursuant to s. 60 of the Trustees Act1 , s. 10 of the Charities Account-

ing Act2 and Rules 14.05(3)(a),(b) and (d) of the Rules of Civil Proce-dure3 , the applicant, Royal Trust Corporation of Canada, Trustee of theestate of Victor Hugh Priebe (the “Trustee”), seeks the opinion, adviceand direction of the court upon the following questions arising out of thelast will and testament of Dr. Priebe dated July 20, 1994:

(a) does the Will provide the Trustee with a discretion to choosewhether or not to disperse funds for the purposes of paragraph3(d)(ii)(E) of the Will?

(b) Are any of the provisions in paragraph 3(d)(ii)(E) of the Will voidor illegal or not capable of being lawfully administered by thetrustee because they are contrary to public policy, discriminatoryon the basis of race, creed, citizenship, ancestry, place of origin,

1 R.S.O. 1990, c. T.23.2 R.S.O. 1990, c. C.10.3 R.R.O. 1990, Reg. 194.


colour, ethnic origin, sexual orientation, or otherwise and/oruncertain?

(c) If so, who is entitled to the trust funds under the Will?

(d) Is there a general charitable intention expressed in the Will suffi-cient to permit the court to exercise its inherent jurisdiction in thematter of charitable trusts and direct that the trust be administeredcy-pres?

(e) If the court exercises its inherent jurisdiction to direct that the trustbe administered cy-pres, how should the Trustee administer thetrusts?

2 The respondents, The University of Western Ontario, University ofWindsor, Windsor Public Library, Hotel-Dieu Grace Healthcare andWindsor Regional Hospital take no position on the application.

3 Applicant’s counsel advises that, as a courtesy, the Human RightsCommission was served with a copy of the application record. The Com-mission did not appear on the return of the application and takes no posi-tion on the application.

4 The Office of the Public Guardian and Trustee asks the court thatwhen giving its advice and direction to the Trustee the court declare par-agraph 3(d)(ii)(E) of the Will void as being contrary to public policy.

5 It is important to note that the position taken by The Office of thePublic Guardian and Trustee is not opposed by the Trustee. The Trus-tee’s position on the application is neutral in all respects. The Trusteeseeks only such advice and direction of the court as will permit the Trus-tee to fulfil its duties and obligations in administering the estate of Dr.Priebe in accordance with the provisions of the Will.

6 Immediately following receipt of submissions on the application, Ideclared paragraph 3(d)(ii)(E) void as being contrary to public policy byvirtue of it being discriminatory on the basis of race, gender and sexualorientation and held that this provision of the Will cannot be saved byapplying the doctrine of cy-pres. I made these findings with written rea-sons to follow. These are those reasons.

Background7 Dr. Priebe died on January 1, 2015. Royal Trust was appointed estate

trustee pursuant to a Certificate of Appointment of Estate Trustee with aWill issued August 4, 2015.


8 The Will contains, inter alia, the following provisions in respect ofwhich the Trustee seeks the court’s opinion, advice and direction:

Paragraph 3(d)(ii): My Trustee shall expend the balance of the in-come of my estate, and all income of my estate following the deathof my sister, in the sole discretion of my Trustee, but after consulta-tion with its Windsor Advisory Board, for so long as it exists, andthereafter, with a committee comprised of senior trust administratorsof my Trustee and no more than two persons not ordinarily employedby my Trustee, such persons to be chosen from those with a science,industry or medical background, other than academics, administra-tors and government officials, for such one or more of the followingpurposes, it being my intention that my Trustee in its sole discretionmay in any one year allocate a portion or all of the income to one ormore of the following purposes so long as it is following a plan, to beupdated from time to time to carry out all such purposes at such timeand times as it determines:

. . .

(E) To provide funds, from time to time and in the discretion of myTrustee for awards or bursaries to Caucasian (white) male, single,heterosexual students in scientific studies, including medicine, ge-netics, biology, chemistry, physics and those going into medicalpharmacology research. The selection of these students shall be madeby my Trustee’s Windsor Advisory Board, or with the committee itconstitutes pursuant to this paragraph 3(d)(ii). It is my wish herebyexpressed that the committee in determining the terms of suchawards or bursaries that they take into consideration academicachievement, but not necessarily the highest marks, but a minimumcumulative average of at least 10.0 (B+) and an honest desire to workand achieve in his or her chosen profession and be of good character.Extracurricular activities (i.e. non-academic) of the applicant shallnot be taken into consideration in qualifying a student for purpose ofthese awards or bursaries. In addition, students with the necessaryacademic qualifications who through work histories have demon-strated that they are not afraid of hard manual work in their selectionof summer employment shall be given special consideration in theselection process. If no paid employment is available, then a full-timevoluntary manual labour job may be considered as a substitute. Theseawards shall be directed to students who are going to attend the Uni-versity of Western Ontario or those for whom it may be a hardship togo to the University of Western Ontario then they can be awarded tothese particular students who wish to attend the University of Wind-sor. No awards to be given to anyone who plays intercollegiate


sports. Further, to similarly provide funds for an award to be knownas the Ellen O’Donnel Priebe Memorial Award in the discretion ofmy trustee, under the same terms as the awards above, except thisaward is to go to a hard-working, single, Caucasian white girl whois not a feminist or lesbian, with special consideration, if she is animmigrant, but not necessarily a recent one. This award is for some-one going into a field the scientific study (not medicine) on the termsoutlined above for the male applicants. The awards, at the discretionof the Trustee may be for some or all of the tuition payable by suchapplicants in the year of the award applicants must reapply if theseare desired in subsequent years and the Trustee will reassess eachcandidate at that time to evaluate their academic progress and adher-ence to remaining single. The number of the awards or bursariesavailable shall be determined at the discretion of the Trustee depend-ing on the amount of award available for this purpose. The awards orbursaries may be paid directly to the University to be attended by anaward recipient on account of tuition.

. . .

(G) In the event that one or more of the foregoing provisions shall bedeclared to be of a non-charitable nature, or, if the qualifications setforth for receipt of an award referred to above are adjudged by acourt of competent jurisdiction to be void for public policy, then theprovision for such gift shall be deleted without prejudice to theremaining provisions of this paragraph 3(d)(ii).

(emphasis added)

Analysis9 The Trustee and the Office of the Public Guardian and Trustee both

agree that pursuant to paragraph 3(d)(ii) set forth above, the Trustee onlyretains discretion as to which of the charitable purposes described inparagraphs 3(d)(ii)(A) through (F) it will direct income in any givenyear. This paragraph does not grant the Trustee discretion to disregardany one or more of the charitable purposes/trusts described in paragraph3(d)(ii). For greater clarification, the Trustee cannot simply disregard thecharitable trust established by paragraph 3(d)(ii)(E).

10 As a precondition to the Trustee having recourse to paragraph3(d)(ii)(G) of the Will, the court must find that paragraph 3(d)(ii)(E) iscontrary to public policy and, therefore, void. This is the central issue onthis application.


11 The leading authority is Canada Trust Co. v. Ontario (Human RightsCommission) [1990 CarswellOnt 486 (Ont. C.A.)].4 In that case, the in-denture, under which the inter vivos trust was created, contained fourrecitals relating to race, religion, citizenship, ancestry, ethnic origin andcolour with respect to the persons eligible to receive scholarships underthe will. One recital stated: “The Settlor believes that the white race is, asa whole, best qualified by nature to be entrusted with the development ofcivilization and the general progress of the world along the best lines.”

12 The Ontario Court of Appeal in Canada Trust Co. found the charita-ble trust to be void on the ground of public policy to the extent that itdiscriminated on the ground of race (colour, nationality, ethnic origin),religion and sex.5

13 As a guiding principle, the court in Canada Trust Co. stated that eachtrust must be evaluated on a case-by-case basis should its validity bechallenged and cautioned that not all restrictions amount to discrimina-tion and are therefore contrary to public policy.

14 I have no hesitation in declaring the qualifications relating to race,marital status, and sexual orientation and, in the case of female candi-dates6 , philosophical ideology, in paragraph 3(d)(ii)(E) of the Will voidas being contrary to public policy. Although it is not expressly stated byDr. Priebe that he subscribed to white supremacist, homophobic and mis-ogynistic views as was the case in the indenture under consideration inCanada Trust Co., the stated qualifications in paragraph 3(d)(ii)(E) leaveno doubt as to Dr. Priebe’s views and his intention to discriminate onthese grounds.

15 With respect to the application of the doctrine of cy-pres, it was envi-sioned (quite rightly) by Dr. Priebe that the qualifications for receipt ofan award or bursary under paragraph 3(d)(ii)(E) might offend public pol-icy. He included in the Will a paragraph permitting the Trustee to seekthe court’s declaration in this regard which the Trustee has now done.The doctrine of cy-pres can have no application in the present case be-cause the Will contains an express provision as to the consequences of a

4 1990 CanLII 6849 at 225 However, the court applied the cy-pres doctrine and brought the educationaltrust into accord with public policy by removing the offending restrictions. Indoing so, the charitable trust was maintained.6 In a derogatory manner female candidates are referred to as “girls”.


declaration by the court that the qualifications for entitlement of anaward or bursary are void as against public policy. In the face of such adeclaration, the Will requires that the “provision for such gift shall bedeleted without prejudice to the remaining provisions of this paragraph3(d)(ii)”. (emphasis added)

16 Having found that the qualifications for receipt of an award or bur-sary under paragraph 3(d)(ii)(E) are discriminatory on the basis of mari-tal status, gender, race and sexual orientation and therefore void on theground of public policy, I am bound to give effect to the intentions of thetestator under paragraph 3(d)(ii)(G) and delete the charitable trust estab-lished under paragraph 3(d)(ii)(E).

17 In summary, the court’s advice and directions on the questions underthe Will posed by the Trustee are as follows:

(a) Does the Will provide the Trustee with a discretion to choosewhether or not to disperse funds for the purposes of paragraph3(d)(ii)(E) of the Will?

No.

(b) Are any of the provisions in paragraph 3(d)(ii)(E) of the Will voidor illegal or not capable of being lawfully administered by the trusteebecause they are contrary to public policy, discriminatory on the ba-sis of race, creed, citizenship, ancestry, place of origin, colour, ethnicorigin, sexual orientation, or otherwise and/or uncertain?

Yes. The qualifications relating to race, gender, marital status andsexual orientation in paragraph 3(d)(ii)(E) are void as being contraryto public policy.

(c) If so, who is entitled to the trust funds under the Will?

The beneficiaries of the other charitable trusts established inparagraphs 3(d)(ii)(A),(B),(C),(D) and (F) of the Will.

(d) Is there a general charitable intention expressed in the Will suffi-cient to permit the court to exercise its inherent jurisdiction in thematter of charitable trusts and direct that the trust be administered cy-pres?

No. The Will requires that upon the court’s declaration that the quali-fications are void as being contrary to public policy the charitabletrust established in paragraph 3(d)(ii)(E) fails in its entirety and is tobe deleted.

(e) If the court exercises its inherent jurisdiction to direct that thetrust be administered cy-pres, how should the Trustee administer thetrusts?


Not relevant given the court’s decision in (d).

Costs18 Both parties acknowledge the other’s entitlement to its respective

costs of the application.19 The Office of Public Guardian and Trustee submitted a Costs Outline

to support its claim for partial indemnity costs of responding to the appli-cation in the amount of $5,904.25 inclusive of disbursements and HST.The Trustee does not object to the quantum claimed and, accordingly, theOffice of the Public Guardian and Trustee shall be paid its costs of theapplication in the all-inclusive amount of $5,904.25 from the estate ofVictor Hugo Priebe, deceased.

20 The Trustee submitted a Costs Outline to support its claim for fullindemnity costs of the application7 in the amount of $16,155.49 inclusiveof disbursements and HST. The Office of the Public Guardian and Trus-tee does not object to the quantum claimed or the reasonableness of thosecosts. I am satisfied that the application was necessary and the time spentby the various timekeepers and rates charged by those timekeepers werereasonable given the importance of the issues to a proper administrationof this estate. Accordingly, Royal Trust, as Trustee of the Estate of Dr.Priebe, shall be paid its costs of the application in the all-inclusiveamount of $16,155.49 from the estate of Victor Hugo Priebe, deceased.

Order accordingly.

7 Trustees are entitled to be fully indemnified for all legal costs reasonably in-curred on behalf of the estate. See Goodman Estate v. Geffen, [1991] 2 S.C.R.353 (S.C.C.) at para. 75.


[Indexed as: Leniuk Estate, Re]

In the Matter of the Estate of Arthur Leniuk, deceased


Docket: Prince Rupert 9475

2016 BCSC 159

Punnett J.


Judgment: January 14, 2016

Estates and trusts –––– Trustees — Nature of trustee’s office — Appoint-ment of new trustees — Under statutory power –––– Under deceased’s will,child who was now 16 years old was left interest in estate subject to trust untilshe reached 19 years of age — Executors and trustee of estate wanted to com-plete final distribution of estate and wind it up — Executors and trustees appliedfor order under Family Law Act that child’s guardian, who was deceased’sdaughter, be appointed trustee to receive and hold all property that child wasentitled to receive from estate in trust on child’s behalf — Application dis-missed — Part 8 of Act did not apply in this situation, as provisions were notintended to and did not override trust instruments — Act addressed situationwhere there was property to which child was entitled but only had guardian andthere was no existing trustee — Where property exceeded prescribed amount,guardian was not deemed to be child’s trustee just because they were guardian,and application was required to determine who appropriate trustee should be —Purpose of provisions of Act was to ensure that there was trustee to protect inter-ests of child — Where there was no trustee and where property exceeded certainvalue, guardian could be appointed trustee — Here there was no uncertaintyover who was child’s trustee, as will established trust and trustees — Terms ofinstrument governed trust, and deceased’s will provided that guardian could re-ceive child’s property and could grant discharge — In accepting receipt fromguardian, trustees would be acting in accordance with terms of will and trustsuch that it would be valid discharge — Trustees’ attempt to delegate their du-ties as trustees to guardian was effectively request for order that amounted tovariation of will — As trust instrument addressed issue of advancing funds toguardian and obtaining valid receipt, there was no need for court application.


Family Law Act, S.B.C. 2011, c. 25Generally — referred toPt. 8 — referred tos. 175 “person having a duty to deliver property to a child” (a) — considered

Leniuk Estate, Re Punnett J. 85

s. 175 “person having a duty to deliver property to a child” (b) — consideredss. 175-179 — considereds. 176 — considereds. 178(6)(a) — considereds. 179 — considereds. 179(1)(b) — considereds. 179(1)(b)(ii) — considereds. 179(4) — considered

Infants Act, R.S.B.C. 1996, c. 223Generally — referred to

APPLICATION by executors and trustees of estate of deceased for order thatguardian of child beneficiary be appointed trustee to receive and hold all pro-perty that child was entitled to receive from estate.

N. Aram, for Applicant Estate Executors, Irene Zak and Angie VallentgoedP.M.J. Johnston, for Kelly Ann Stenset

Punnett J. (orally):

1 The applicants Irene Zak and Angie Vallentgoed are the executorsand trustees of the estate of Arthur Leniuk, deceased. They apply for anorder that Kelly Ann Stenset, the guardian of the child beneficiary Syd-ney Grace Stenset, be appointed as a trustee to receive and hold in truston the child’s behalf all property that the child is entitled to receive fromthe estate.

2 The application is brought pursuant to Part 8 of the Family Law Act,S.B.C. 2011, c. 25 [FLA]. At issue is whether Part 8 applies where a willappoints a trustee with power to administer the property of a child.

3 The position of the Public Guardian and Trustee, as stated in theirletter to counsel, is that the Will is paramount and Part 8 of the FLA doesnot apply.

Background4 The deceased’s will dated June 19, 2008, a codicil dated December

15, 2008 and a further codicil dated January 23, 2014, appointed the ap-plicant’s as co-executors and trustees. A grant of probate was issued onSeptember 12, 2014. The will provides that 20% of the residue of theestate be divided into equal shares among the deceased’s grandchildren,only one of whom, Sydney Grace Stenset, remains a child having beenborn on July 29, 1999. She is now 16 years of age.


5 The relevant provisions in the Will empowering the trustees with re-spect to the child’s share are as follows:

4. IF ANY PERSON should become entitled to any share in my es-tate before attaining the age of nineteen (19) years, the share of suchperson shall be held and kept invested by my estate and the incomeand capital or so much thereof as my Trustee in her absolute discre-tion considers necessary or advisable shall be used for the benefit ofsuch person until he or she attains the age of nineteen (19) years.

5. I AUTHORIZE my Trustee to make any payments for any personunder the age of nineteen (19) years to a guardian of such personwhose receipt shall be a sufficient discharge to my said Trustee.

6 The applicants seek to have Kelly Ann Stenset, the daughter of thedeceased and the guardian of Sydney Grace Stenset appointed as trusteeso that the applicants may deliver the portion of the estate held in trustfor Sydney Grace Stenset to Kelly Ann Stenset in her capacity as a trus-tee. Under the FLA she would then be authorized to receive that propertyand to provide a valid discharge to the executors.

7 In addition to the question of the application of Part 8 the reasongiven for the application is that if the executors continue to hold SydneyGrace Stenset’s share in the estate, the final distribution of the estate can-not be completed, the estate cannot be wound up and the estate will con-tinue to be charged with the cost and expense of its administration untilthe child reaches 19 years of age.

8 The child Sydney Grace Stenset’s interest in the estate is approxi-mately $15,000.

Law9 At common law a receipt signed by a minor beneficiary was not a

valid receipt. As a result applications under the inherent jurisdiction ofthe courts became necessary to release funds for the maintenance andadvancement of infants. These powers were later reduced to statutoryform in the Infants Act, R.S.B.C. 1996, c. 223.

10 Sections 175-179 of the FLA, provides: Definitions

175 In this Division and the regulations made under section 248(1)(c)[general regulation-making powers]

“deliver property” includes pay money;

“person having a duty to deliver property to a child”means a person who


(a) is under a duty to deliver property to a child or

(b) would be under a duty to deliver property to achild if the child were an adult;

“trust instrument” means a will, a deed, a declaration oranother written record by which a person creates a trust;

“trustee” means a person authorized under

(a) a trust instrument,

(b) this Act or any other enactment, or

(c) an order made under this Act or any otherenactment

to receive or hold property in trust for a child.

Guardian not automatically entitled to receive property

176 Except as set out in section 178 [delivery of small property], achild’s guardian is not, by reason only of being a guardian,

(a) a trustee of the child’s property, or

(b) entitled to give a valid discharge on receiving property on be-half of the child.

Delivery of any property to trustee

177 A person having a duty to deliver property to a child may dis-charge the duty by delivering the relevant property to a trustee who isauthorized to receive that property.

Delivery of small property

178 (1) This section does not apply to any of the following property:

(a) property that a trustee has authority to receive or holdfor a child;

(b) property whose value is more than the prescribedamount;

(c) property that is within a prescribed class of property.

(2) A person having a duty to deliver property to a child maydischarge the duty by

(a) delivering the relevant property

(i) to the child, if the child has a duty to supportanother person, or

(ii) to a guardian having parental responsibilitieswith respect to the child as set out in section41 (a) [parental responsibilities], and


(b) obtaining an acknowledgment in the prescribed formfrom the person to whom the property is delivered.

(3) A person who delivers property in accordance with subsec-tion (2) is entitled to rely on a representation in the acknowl-edgment received under subsection (2) (b).

(4) Despite subsection (2) (a), a child or guardian may not re-ceive property under that subsection if receiving the propertywould cause the child to hold, or the guardian to hold on be-half of the child, property whose value exceeds the amountprescribed for the purposes of subsection (1) (b).

(5) A guardian who receives property under this section holds theproperty in trust for the child.

(6) Nothing in this section

(a) affects the duty of a trustee to deal with trust propertyin accordance with the terms of the trust, or

(b) prevents a person having a duty to deliver property toa child from discharging the duty by delivering theproperty to the Public Guardian and Trustee in trust, ifthe Public Guardian and Trustee is willing to acceptthe property.

Appointment of trustee by Supreme Court

179 (1) Subject to subsection (2), the Supreme Court on applicationmay appoint one or more persons as trustees over

(a) particular property to which the child is entitled, in-cluding any property derived from the property orfrom the disposition of the property, or

(b) all property to which the child is entitled at the timethe order is made and to which the child becomes enti-tled while the order is in effect, except property

(i) identified in the order, or

(ii) over which a trustee already has authority.

(2) The Supreme Court may appoint a trustee only if satisfiedthat it is in the best interests of the child to do so, on consider-ation of all of the following:

(a) the apparent ability of the proposed trustee to adminis-ter the property;

(b) the merits of the proposed trustee’s plan for adminis-tering the property;


(c) the views of the child, unless it would be inappropri-ate to consider them;

(d) the personal relationship between the proposed trusteeand the child;

(e) the wishes of the child’s guardians;

(f) the written comments of the Public Guardian andTrustee;

(g) the potential benefits and risks of appointing the pro-posed trustee to administer the property compared toother available options for administering the property;

(h) if the Supreme Court is considering making an orderunder subsection (1) (b), that the interests of the childare likely better served by an order made under thatsubsection than by an order made under subsection (1)(a).

(3) An order made under this section to appoint a trustee may doone or more of the following:

(a) require the trustee to deliver the trustee’s accounts atspecified intervals for the examination and approvalof the court;

(b) limit the duration of the trusteeship;

(c) specify or limit the types of investment in which thetrustee may invest the property;

(d) provide for compensation of the trustee including,without limitation, setting rates and specifying whenthe compensation may be taken;

(e) require the trustee to give security in any form thecourt directs;

(f) make any other order the court considers appropriate.

(4) Except as provided for in an order made under this section,the Trustee Act applies to the trustee and the trust.

Discussion11 Directions of the Court are sought because it is submitted that the

executors and trustees are persons “having a duty to deliver property to achild” as defined in s. 175 either because there is an existing duty todeliver the property to a child or because they would be under a duty todeliver property to a child if the child were an adult. (ss. 175 (a)(b)).


12 That however is not determinative given Part 8 of the FLA does not,in my view, apply in this situation. I say this for a number of reasons.

13 Section 176 provides that a guardian, simply because they are aguardian, is not a trustee of a child’s property. As a result someone elsecan be trustee of the child’s property. Hence, a trust instrument, such as awill, that states a guardian is to receive a child’s property and is empow-ered to grant a discharge is not contrary to the section. Indeed s. 176 byits very wording recognizes this as it provides “by reason only of being aguardian”. (Emphasis added)

14 In my opinion the FLA provisions were not intended to, nor do they,override trust instruments. For public policy reasons, the Legislature sawfit to provide that the FLA address the situation where there is property towhich a child is entitled but the child only has a guardian and there is noexisting trustee. In circumstances where the property exceeds the pre-scribed amount in the small property exception the child’s guardian isnot deemed to be the child’s trustee simply because they are a guardian.An application to the Court is required in order to determine who theappropriate trustee should be. Section 179 provides the factors the Courtshould consider when appointing a child’s trustee. Similar to other provi-sions in the FLA, the best interests of the child are paramount. An exam-ple of a situation when this might occur would be if a child receivedproperty from a relative who died intestate.

15 Given the significant repercussions if the FLA provisions were in-tended to override existing trusts, in my opinion the legislature wouldhave addressed that explicitly. Since the FLA provisions when dealingwith “small property” were clearly addressing issues of proportionality Icannot accept that it was intended that existing trusts would have to ap-ply to appoint a guardian a trustee in order to deliver property to a child.The potential number of applications would undoubtedly be significantand the cost substantial. In addition it would result in an inappropriatelayering of trustee on top of trustee. Finally, it would be contrary to theexpress terms of the trust representing the wishes, in this case, of thetestator.

16 The Provincial Ministry’s comments found in British Columbia Fam-ily Law Practice 2016, (Markham: LexisNexis Canada Inc., 2015) at 777-778 indicate that the sections are intended to help families manage cer-tain types of property belonging to children. However, there is no indica-


tion that the sections were intended to override existing valid trust instru-ments.

. . .

Ministry Comment: The children’s property regime in the FLA al-lows parents and guardians to manage children’s property under acertain value without the need for a court order appointing them astrustees. The monetary limit for this will be established by regulation.

The legislation also sets out criteria to govern the court appointmentof trustees where the trust is larger. The children’s property regime islargely modeled after Alberta’s Minors’ Property Act. The children’sproperty regime is intended to promote the value of family autonomyby allowing a guardian (usually a parent) to manage small trusts fortheir children. In this way, families can avoid the fees associated withprofessional trustees.

At the same time, to reduce the risk of mismanagement of the child’sproperty, the FLA builds in safe guards, including limits on the valueand the type of property that the guardian may manage without courtappointment, as well as the use of written acknowledgements for thereceipt of property.

. . .

Section 176 clarifies the law that a parent or guardian is not automat-ically a trustee of a child’s property. This does not change the law.Under the FRA, a parent or guardian must have been appointed atrustee in order to administer their children’s trusts.

. . .

17 Part 8 also recognizes in s. 175 that a trust instrument includes a willand that trustees are authorized under such an instrument to receive orhold property in trust for a child. In other words, such a trustee is in-cluded in the definition of trustee just as is a trustee appointed under theFLA.

18 In addition Part 8 acknowledges a trust instrument’s priority over theprovisions of the FLA. For example, s. 178(6) of the FLA dealing withthe delivery of small property provides:

178 . . .

(6) Nothing in this section

(a) affects the duty of a trustee to deal withtrust property in accordance with the terms ofthe trust, ...

. . .


19 Section 179, the appointment of a trustee by the Supreme Court pro-vision, also contains an exception in s. 179(1)(b) which provides:

179 (1) Subject to subsection (2), the Supreme Court on applicationmay appoint one or more persons as trustees over

. . .

(b) all property to which the child is entitled at the timethe order is made and to which the child becomes entitledwhile the order is in effect, except property

(i) identified in the order, or

(ii) over which a trustee already has authority.

(Emphasis added)

20 Finally, s. 179(4) states: 179 . . .

(4) Except as provided for in an order made under this section, TheTrustee Act applies to the trustee and the trust.

21 To assert that children’s property advanced to a guardian by anyone iscaught by these sections extends the FLA provisions beyond their pur-pose and the problem they were intended to address. The purpose ofthese sections is to ensure that there is a trustee to protect the interests ofthe child, whether that is the guardian as trustee or another person doesnot matter. The point is to have someone responsible for the infant’sfunds and to address the fact, that often for various practical reasons, it isdesirable for the guardians to have the funds. Where there is no trusteeand where the property exceeds a certain value, the guardian can be ap-pointed as trustee.

22 This is not a situation where there is uncertainty over who is the in-fant’s trustee. It is the trust instrument (the Will) that establishes the trustand names the trustees. It is the terms of that instrument that govern thetrust. As long as the trustees comply with the terms of the trust they areprotected. In accepting a receipt from the guardian they would be actingin accordance with the terms of the will and the trust and as a result thatwould be a valid discharge.

23 The trustees are in this instance attempting to delegate their duties astrustees to a third party. In effect they are seeking an order that amountsto a variation of the Will.

24 As a result, where the trust instrument addresses the issue of advanc-ing funds, whether income or capital, to a guardian and addresses theobtaining of a valid receipt there is no need for a court application.


25 With respect to the issue of costs the Public Guardian and Trusteesuggested costs should not be recoverable from the estate because theapplication was unnecessary. While I have determined the application isnot required I accept that counsel in seeking directions from the Courtwas justified in doing so. I say this because the FLA provisions are newand do not appear to have been judicially considered. In addition counselrelied on the following from the Wills, Estates and Succession Act Tran-sition Guide published by the Continuing Legal Education Society ofBritish Columbia:

C. RIGHTS IN RELATION TO CHILDREN’S PROPERTY[[S.] 8.12]

The Family Law Act also includes provisions that clarify the rights ofguardians in relation to children’s property. In the estate context thisis relevant as documents such as wills and trusts are often are draftedto permit an executor or trustee to make a payment to a guardian onbehalf of a child as a valid discharge of his or her duties. Section 176of the Family Law Act makes it clear that a child’s guardian is notentitled to give a valid discharge simply by virtue of being a guardianexcept where provided in the legislation (e.g., in relation to smallgifts). Rather a person, such as an executor, who has a duty to deliverproperty to a child may discharge this duty by delivering the propertyto an authorized trustee. The Family Law Act then provides for how atrustee may be appointed by the court. As a court application may becostly and time consuming, in drafting wills and trust provisions inrelation to minors, if it is intended that the executor or trustee shouldhave the power to deliver property to the guardian on behalf of theminor and thus relieve themselves of any ongoing obligation in rela-tion to that property, it will be necessary to include powers in therelevant document to enable the executor or trustee to appoint theguardian as a trustee rather than simply delivering property to him orher in his or her capacity as guardian.

26 As will be apparent from these reasons I have concluded the above isnot the case where a valid trust instrument exists. In particular, in myopinion the suggestion that it is necessary to include powers in the rele-vant document to enable the executor or trustee to appoint a guardian asa trustee is incorrect in light of my finding that Part 8 simply does notapply to situations where the trust instrument already provides for theappointment of a trustee with authority to distribute the infant’s propertyand make payments to an infant’s guardian.

27 The applicants shall have their costs as special costs from the estate.

Application dismissed.


[Indexed as: Kusch Estate v. Muller Estate]

Jan Ostlund, as Executrix of the Estate of Rita Kusch,Applicant/Respondent by Counter-Application and Brian Dolan,

as the Executor of the Estate of Olive Regina Marie Muller,Respondent/Applicant by Counter-Application

Saskatchewan Court of Queen’s Bench

Docket: Prince Albert QBS 18/14

2016 SKQB 69

D.E. Labach J.

Judgment: March 1, 2016

Estates and trusts –––– Estates — Legacies and devises — Payment of lega-cies — Disclaimer by beneficiary –––– OM and RK were sisters — In her willOM appointed RK, and her nephew, BD, as joint executors of her estate — OMalso executed power of attorney naming RK as her attorney — RK executed herown power of attorney in favour of JO, naming JO or her son JK as attorney —RK executed new will appointing JO as her executor or, alternatively, JK — JKbegan looking after all of financial affairs of RK and OM — OM passed away atage 97 — RK signed documents giving up her appointment as executor of OM’sestate, as well as any monetary gain received from estate of OM — RK passedaway at age 92 — JO brought application taking issue with mental capacity ofRK at time she relinquished her right to share in estate of OM — It was deter-mined that trial of issue was required — There was conflicting evidence on issueof whether RK was mentally competent at time she signed handwritten dis-claimer of her interest and later when signed typewritten disclaimer — RK couldonly disclaim her interest if she had disposing mind and memory — It was notpossible to decide issue of capacity on basis of affidavit evidence filed — Whencourt considered somewhat suspicious circumstances that resulted in creation ofdisclaimers, and that party standing to gain most from disclaimer prepared docu-ments and his spouse witnessed RK’s signature, it reinforced decision that trialof issued was necessary — At trial, more and better evidence could be calledand be subject to cross-examination so that serious issued could be properlyresolved.

Estates and trusts –––– Estates — Will challenges — Undue influence —What constituting –––– OM and RK were sisters — In her will OM appointedRK, and her nephew, BD, as joint executors of her estate — OM also executedpower of attorney naming RK as her attorney — RK executed her own power ofattorney in favour of JO, naming JO or her son JK as attorney — RK executednew will appointing JO as her executor or, alternatively, JK — JK began look-

Kusch Estate v. Muller Estate 95

ing after all of financial affairs of RK and OM — OM passed away at age 97 —RK signed documents giving up her appointment as executor of OM’s estate, aswell as any monetary gain received from estate of OM — RK passed away atage 92 — JO brought application, in part raising issue of whether executor ofestate of OM, and/or his spouse, unduly influenced RK to disclaim her interestin estate of OM — Application dismissed in this respect — Besides making alle-gation in application, applicant did not provide shred of evidence that RK wasactually unduly influenced or that there was presumption of undue influence atplay — There was no evidence RK was manipulated or coerced to sign dis-claimers or make statements attributed to her or that there was some relationshipbetween RK and persons in question that gave rise to potential for domination orcoercion to exist.

Estates and trusts –––– Estates — Passing of accounts — Accounting —Miscellaneous –––– OM and RK were sisters — In her will OM appointed RK,and her nephew, BD, as joint executors of her estate — OM also executed powerof attorney naming RK as her attorney — RK executed her own power of attor-ney in favour of JO, naming JO or her son JK as attorney — RK executed newwill appointing JO as her executor or, alternatively, JK — JK began looking af-ter all of financial affairs of RK and OM — OM passed away at age 97 — RKsigned documents giving up her appointment as executor of OM’s estate, as wellas any monetary gain received from estate of OM — RK passed away at age92 — Executor of estate of OM brought application for accounting of RK’s ac-tions as power of attorney for OM, accounting of JO’s and JK’s actions aspower attorney for RK, and for JO to provide accounting of estate of RK —Estate of RK was ordered to provide accounting of four sales of OM’s real pro-perty that RK carried out as OM’s attorney — RK’s estate was not required tofile full accounting of RK’s actions as OM’s power of attorney, but order foraccounting limited to real estate transactions that RK brokered on OM’s behalfwas required — Court was not prepared to make order that JO or JK provideaccounting of their actions as power of attorney for RK to estate of OM — JOnever made any decisions for RK as her attorney and while JK may have as-sisted his mother in having properties listed or sold, evidence was that RK madedecisions regarding properties, she was competent to do so at time and shesigned appropriate documents for properties to be sold — Court did not haveauthority under s. 55 of Trustee Act, 2009 to order that JO provide accounting ofRK’s estate to executor of OM’s estate.

Professions and occupations –––– Barristers and solicitors — Employmentof lawyer — Representation by solicitor — Application for removal as solic-itor of record –––– OM and RK were sisters — In her will OM appointed RK,and her nephew, BD, as joint executors of her estate — OM also executed powerof attorney naming RK as her attorney — RK executed her own power of attor-ney in favour of JO, naming JO or her son JK as attorney — RK executed new


will appointing JO as her executor or, alternatively, JK — JK began looking af-ter all of financial affairs of RK and OM — OM passed away at age 97 — RKsigned documents giving up her appointment as executor of OM’s estate, as wellas any monetary gain received from estate of OM — RK passed away at age92 — Executor of OM’s estate brought application, in part for order removinglaw firm as counsel for estate of RK — Application dismissed in this respect —Counsel for RK’s estate had not stated that lawyer who was partner from firmwould be called as witness for trial — All that was offered was conjecture thatlawyer would be witness, and court was not even satisfied that this conjecturewas very strong — It was not clear how lawyer’s dealings with RK in 2012would have any bearing on her mental capacity 12 to 20 months later — Therewas no evidence that lawyer or his firm represented OM in sale of any of herreal property — There was no conflict of interest.

Civil practice and procedure –––– Discovery — Discovery of documents —Miscellaneous –––– OM and RK were sisters — In her will OM appointed RK,and her nephew, BD, as joint executors of her estate — OM also executed powerof attorney naming RK as her attorney — RK executed her own power of attor-ney in favour of JO, naming JO or her son JK as attorney — RK executed newwill appointing JO as her executor or, alternatively, JK — JK began looking af-ter all of financial affairs of RK and OM — OM passed away at age 97 — RKsigned documents giving up her appointment as executor of OM’s estate, as wellas any monetary gain received from estate of OM — RK passed away at age92 — Executor for OM’s estate brought application, in part for order directingthat law firm disclose its files pertaining to will of RK and its files when theyacted for OM — Application granted in part, in this respect — It was not shownthat lawyer’s wills file for RK would be relevant — There was no suggestionthat RK was not competent to execute her will in January 2012, and it was un-clear how anything in wills file had bearing on issue of RK’s mental competenceto sign renunciation of probate and disclaimer of her bequest in August 2013 —While there was no evidence that law firm represented OM in sale of her proper-ties, if law firm did represent OM, files in this respect were OM’s files and therewas no reason why her estate should not be entitled to them — No waiver ofprivilege was required — Any such files in possession of law firm had to bedisclosed.

Cases considered by D.E. Labach J.:

Clausen v. Royal Inland Hospital (2003), 2003 BCSC 496, 2003 CarswellBC741, [2003] B.C.J. No. 725 (B.C. S.C. [In Chambers]) — referred to

Davie v. Davie Estate (2000), 2000 BCSC 1517, 2000 CarswellBC 2137, [2000]B.C.J. No. 2143, [2000] B.C.T.C. 813 (B.C. Master) — referred to

Leger v. Poirier (1944), [1944] S.C.R. 152, [1944] 3 D.L.R. 1, 1944 Car-swellNB 11 (S.C.C.) — referred to

Kusch Estate v. Muller Estate 97

Montreal Trust Co. v. Matthews (1979), [1979] 3 W.W.R. 621, 11 B.C.L.R. 276,1979 CarswellBC 87, 99 D.L.R. (3d) 65 (B.C. S.C.) — referred to

Mort v. Saanich School District No. 63 (1999), 1999 CarswellBC 4417, [1999]B.C.J. No. 386 (B.C. S.C.) — referred to

Prokopetz v. Ruf (2008), 2008 SKQB 276, 2008 CarswellSask 434, (sub nom.Prokopetz Estate, Re) 319 Sask. R. 238 (Sask. Q.B.) — distinguished

Saskatoon Credit Union Ltd. v. Creighton Holdings Ltd. (1987), [1988] 2W.W.R. 541, 64 Sask. R. 297, 1987 CarswellSask 406 (Sask. Q.B.) —considered

Tatum v. Tatum (2011), 2011 ABQB 253, 2011 CarswellAlta 677, 68 E.T.R.(3d) 65 (Alta. Q.B.) — referred to

Thorsteinson v. Olson (2014), 2014 SKQB 237, 2014 CarswellSask 507, [2014]10 W.W.R. 768, 100 E.T.R. (3d) 39, 46 R.P.R. (5th) 48, 452 Sask. R. 160(Sask. Q.B.) — followed

Tinline v. Tinline Estate (2013), 2013 SKQB 167, 2013 CarswellSask 291, (subnom. Tinline Estate, Re) 420 Sask. R. 81 (Sask. Q.B.) — considered

Townson v. Tickell (1819), 106 E.R. 575, 3 B. & Ald. 31, [1814-23] All E.R.Rep. 164 (Eng. K.B.) — considered


Administration of Estates Act, S.S. 1998, c. A-4.1s. 35 — considered

Powers of Attorney Act, 2002, S.S. 2002, c. P-20.3s. 14(1) — considereds. 18 — considereds. 18.1 [en. 2014, c. 22, s. 7] — considereds. 18.1(3) [en. 2014, c. 22, s. 7] — considered

Trustee Act, 2009, S.S. 2009, c. T-23.01Generally — referred tos. 55 — considered

Rules considered:

Queen’s Bench Rules, Sask. Q.B. Rules 2013Generally — referred to

Words and phrases considered:

disclaimer

[I]n the context of a will or an estate, a disclaimer is a refusal to accept aninterest which has been bequeathed to the disclaiming party. When an interest isdisclaimed, it is as if it had never been acquired by the disclaiming party. Sincea disclaimer operates not to divest a gift but rather prevent it from vesting, thereis no requirement of form. It can be by deed, by writing, by conduct or evenorally.


disposing mind

[W]hen challenging the mental competence of a beneficiary to disclaim, it isincumbent on the challenger to prove on a balance of probabilities that at thetime the disclaimer was executed, the beneficiary did not have a disposing mindor memory. . . . [A] disposing mind would entail (1) that the beneficiary under-stood what he or she was doing, (2) that he or she understood what was beinggiven to them and by who, and (3) that he or she understood what they weregiving up.

APPLICATIONS by estate executors for various relief relating to estates, in-cluding accounting and removal of law firm as counsel.

Calvin D. Ursaki, for Jan Ostlund, Executrix of the Estate of Rita KuschRyan R. Lavoie, for Brian Dolan, Executor of the Estate of Olive Muller

D.E. Labach J.:

Introduction1 There are three applications before me following a decision of my

brother Justice Currie dated February 20, 2015 wherein he struck a State-ment of Claim filed by Jan Ostlund [Jan] as executrix of the estate ofRita Kusch [Rita] but granted her leave to reinstitute proceedings by wayof originating application. As a result, Ms. Ostlund filed an originatingapplication requesting a determination that:

(a) The documents executed by the late Rita Kusch relinquishing herright to share in the estate of her sister, Olive Regina Marie Muller[Olive], be deemed null and void and of no legal force and effector alternatively, there be a trial of the issue regarding the validityof said documents; and

(b) Nothing be done under the grant of probate of the estate of OliveRegina Marie Muller without leave of the Court, pending the finaloutcome of this application.

2 Prior to this application being heard, Brian Dolan [Brian], in his ca-pacity as executor of the estate of Olive Regina Marie Muller, filed anapplication asking this Court for the following relief:

(a) An order requiring a full accounting of the late Rita Kusch’s ac-tions in her capacity as Power of Attorney for Olive Muller;

(b) An order requiring a full accounting of Jan Ostlund and JamesKusch’s [James] actions in their capacity as Power of Attorney forRita Kusch;

Kusch Estate v. Muller Estate D.E. Labach J. 99

(c) An order requiring Jan Ostlund in her capacity as executrix of theestate of Rita Kusch to provide an accounting to the applicant whois a beneficiary of the estate;

(d) An order directing the law firm of Mathiason Valkenburg & Pol-ishchuk to disclose its files pertaining to the will of the deceased,Rita Kusch, and its files when they acted for the deceased, OliveMuller; and

(e) An order removing the law firm of Mathiason Valkenburg & Pol-ishchuk as counsel for the estate of Rita Kusch.

3 Mr. Dolan filed one further application requesting that the Court granthim leave to cross-examine Rodalyn Gamueda on her affidavit sworn insupport of Ms. Ostlund’s application.

Facts:4 This case is akin to something you would expect to see on a law

school exam. Olive Muller and Rita Kusch were sisters. On February 29,2008 Olive attended at the law firm of Scharfstein Gibbings WalenFisher and executed a will. In her will she appointed her sister, Rita, andher nephew, Brian Dolan, as joint executors of her estate. She made anumber of specific bequests in her will, mainly to Rita. Finally she stipu-lated that the residue of her estate should be divided equally betweenRita and Brian. At the same time that she executed her will, Olive alsoexecuted an Enduring Power of Attorney naming Rita as her attorney.

5 By the spring of 2009, Olive was 93 years old and suffering fromdementia. She could no longer manage her personal or financial affairs.She moved out of her home at 305 Avenue P North in Saskatoon and intothe Sunnyside Adventist Care Centre. Rita was 88 at this time and wasmanaging Olive’s affairs pursuant to the Power of Attorney granted toher including paying all of Olive’s monthly bills, filing her income taxreturns and arranging for the sale of some of Olive’s real property.

6 On August 14, 2009, Rita executed her own Power of Attorney infavour of a family friend, Jan Ostlund. On July 10, 2010, Rita attendedon her lawyer, Ben Valkenburg, and had him draft a new EnduringPower of Attorney for her. In the new document she named her son,James Kusch, or Jan Ostlund as her said attorney.

7 Over time, Rita’s physical and mental abilities began to diminish. Shebecame less and less capable of managing her own affairs and those of


Olive’s. By July 2010, Rita was regularly calling on her son, James, tohelp her manage hers and Olive’s affairs.

8 In 2011, Rita was no longer capable of living by herself in her ownhome. Her memory was declining and she was forgetting to eat and takeher medications. As a result, she moved to Preston Park Retirement Resi-dence, an assisted living senior citizen’s complex. Over her time thereshe struggled to maintain the upkeep of her suite, had difficulty lookingafter her personal hygiene, began to lose her hearing and suffered fromback pain. Her memory continued to decline. She became even less capa-ble of doing things for herself and less willing to act as attorney for Ol-ive. Despite these difficulties, Rita would still go to visit Olive at Sunny-side Care Home or attend on her lawyer to discuss issues surrounding herwill.

9 In November 2011, Rita was admitted to St. Paul’s Hospital sufferingfrom congestive heart failure. Upon her discharge on December 26, herattending physician noted that while she was well enough to go back toher previous care home, he had concerns regarding her cognition andwould have liked her to be in a more supervised situation such as a pri-vate care home. There is nothing further in his report filed explaining hisconcerns. Rita returned to Preston Park.

10 On January 31, 2012, Rita met with her lawyer, Ben Valkenburg, andexecuted a new will. This will appointed Jan Ostlund as her executrix orin the alternative, her son, James. There were a number of specific be-quests in the will. The bulk of her estate was to go to her son, James. Therespondent, Brian Dolan, and his wife, Olga, were to receive a $30,000bequest.

11 By September 2012, James Kusch was looking after all of Rita’s fi-nancial affairs and his aunt Olive’s too as his mother was no longer ableto do so. James made arrangements for Olive’s cabin at Wakaw Lake tobe sold. Rita signed the transfer documents as Olive’s attorney withJames cuing her to do so.

12 Rita was admitted to St. Paul’s Hospital again in March 2013. Shewas suffering from pneumonia. During her time at the hospital she wasseen by both a physical therapist and an occupational therapist. Their re-ports indicate that Rita was consistently disoriented to time and place,did not know why she was in the hospital, had difficulty following com-mands and had lower reasoning, problem solving and memory function.Her physician strongly recommended that Rita not return to Preston Parkbut that she be admitted to a long-term personal care facility. Upon her


discharge on May 19, Rita went to live at just such a facility: Arbor VillaCare Home in Saskatoon.

13 Olive Muller passed away on July 19, 2013. She was 97 years old.Shortly after her death, Brian Dolan attended at James Kusch’s residenceand told James that the lawyer dealing with Olive’s estate required all ofthe documentation regarding the different real estate transactions thatRita performed for Olive under her Power of Attorney. James told himthat he would locate those documents and forward them to the estate law-yer. Mr. Dolan also asked where Rita was living and Mr. Kusch advisedhim that she was at Arbor Villa Care Home.

14 On August 13, 2013, Brian Dolan and his wife, Olga, went to ArborVilla Care Home to speak to Rita. The specifics of their conversation arein dispute. However while there, Mr. Dolan drafted a document thatstated as follows:

I, Rita Kusch, wish to give up my appointment as executors of OliveMuller’s estate. Brian Dolan will be the sole executor in this mater(sic), and I relinquish my rights under this matter.

15 Rita signed this document and her signature was witnessed byRodalyn Gamueda, a staff member from the care home. Ms. Gamuedawas unsure if she should act as a witness in these circumstances so sheasked Brian to sign a note indicating that James Kusch knew they werethere. He did so and provided it to her. The note said:

Re: Rita Kusch

Jim Kusch knows we were here to see Rita regarding Olive’s Will.

16 Brian Dolan delivered the handwritten renunciation to Mr. GordBalon, the lawyer for Olive’s estate. Mr. Balon requested that Brian haveRita sign a more formal document. Mr. Balon drafted a formal renuncia-tion of probate and on August 23, 2013, Brian and Olga re-attended atArbor Villa Care Home to meet with Rita to get her to sign this docu-ment. This document stated as follows:

WHEREAS OLIVE REGINA MARIE MULLER, late of Saska-toon, in the Province of Saskatchewan, died on or about the 19 day ofJuly, A.D. 2013, and whereas the deceased left a Will dated the 29day of February, 2008, and I, RITA KUSH, the Province of Sas-katchewan, was named an Executor therein.

NOW I renounce my right to probate.

17 Rita signed this document and Olga witnessed her signature. Forsome reason, the date of execution on the document was August 22,2013.


18 At this same time the Dolans presented another document to Rita tosign. The evidence is not clear who prepared this document but it wastypewritten and dated August 23, 2013. It stated as follows:

I, Rita Kusch renounce any monetary gain I may have received fromthe estate of Olive Regina Marie Muller, and to turn over all saidgain to co-executor Brian Edward Dolan, to dispense with at hisdiscretion.

19 Rita signed this document and it was witnessed by Olga Dolan andRodalyn Gamueda.

20 With these documents in hand, Brian applied for grant of probate ofthe Last Will and Testament of his aunt, Olive Muller, on January 31,2014. On February 4, Justice Maher granted letters probate to him.

21 Rita Kusch died on March 4, 2014 at the age of 92. From conversa-tions she had with Rita before she passed, Ms. Ostlund was aware thatRita was named as a beneficiary in Olive’s will. In her capacity as execu-trix of the estate of Rita Kusch, she contacted Mr. Dolan and requested acopy of Olive’s will. Ms. Ostlund wanted to determine what Rita’s estatewas entitled to from Olive’s estate. Again, the nature of the conversationis disputed but suffice it to say that it ended with Mr. Dolan refusing toprovide a copy of Olive’s will and Ms. Ostlund requesting the name ofthe lawyer looking after the estate. Brian Dolan told her that the estate’slawyer was Gordon Balon, Q.C.

22 Ms. Ostlund hired Ben Valkenburg to represent Rita’s estate. Hewrote to Mr. Balon and was able to obtain information regarding Olive’sestate. Ms. Ostlund made application for grant of probate of Rita Kusch’sLast Will and Testament and letters probate were granted to her July 25,2014 by Chief Justice Popescul.

23 According to Ms. Ostlund, Rita’s purported relinquishment of hershare of Olive’s estate has resulted in a situation wherein Rita’s estatedoes not have sufficient assets to satisfy all the legacies made under HerLast Will and Testament. Ms. Ostlund now brings this application takingissue with the mental capacity of Rita at the time she signed the docu-ments relinquishing her right to her share in the estate of her sister, Ol-ive. In response, the respondent disputes the application and brings hisown applications requesting a number of miscellaneous orders.

Issues:24 The issues are as follows:


(a) Was the late Rita Kusch mentally competent at the time she dis-claimed her interest in the estate of Olive Regina Marie Muller?

(b) Did Brian Dolan and/or his spouse unduly influence the late RitaKusch to disclaim her interest in the estate of Olive Regina MarieMuller?

(c) Should the estate of Rita Kusch be required to provide an account-ing of the late Rita Kusch’s actions as power of attorney for OliveMuller to the estate of Olive Regina Marie Muller?

(d) Should Jan Ostlund and James Kusch be required to provide anaccounting of their actions as powers of attorney for Rita Kusch tothe estate of Olive Regina Marie Muller?

(e) Should Jan Ostlund, executrix of the estate of Rita Kusch, be re-quired to provide an accounting of the estate of Rita Kusch toBrian Dolan, executor of the estate of Olive Regina Marie Muller?

(f) Should the law firm of Mathiason Valkenburg & Polishchuk beremoved as counsel for the estate of Rita Kusch?

(g) Should the law firm of Mathiason Valkenburg & Polishchuk bedirected to disclose its files pertaining to the will of the deceased,Rita Kusch, and any files wherein they acted for the deceased, Ol-ive Muller, to Brian Dolan, the executor of the estate of Olive Re-gina Marie Muller?

(h) Should Brian Dolan, executor of the estate of Olive Regina MarieMuller, be granted leave to cross-examine Rodalyn Gamueda onher affidavit sworn April 21, 2015?

Analysis:

(a) Was the late Rita Kusch mentally competent at the time shedisclaimed her interest in the estate of Olive Regina Marie Muller?

25 The law relating to disclaimers is, surprisingly, arcane; the case law,scarce. Suffice it to say that the law will not force a person to accept agift. In Townson v. Tickell (1819), [1814-23] All E.R. Rep. 164 (Eng.K.B.), Abbott C.J. stated:

The law certainly is not so absurd as to force a man to take an estateagainst his will. Prima facie, every estate, whether given by will orotherwise, is supposed to be beneficial to the party to whom it is sogiven. Of that, however, he is the best judge, and if it turn out that theparty to whom the gift is made does not consider it beneficial, the


law will certainly, by some mode or other, allow him to renounce orrefuse or renounce the gift.

26 Thus in the context of a will or an estate, a disclaimer is a refusal toaccept an interest which has been bequeathed to the disclaiming party.When an interest is disclaimed, it is as if it had never been acquired bythe disclaiming party. Since a disclaimer operates not to divest a gift butrather prevent it from vesting, there is no requirement of form. It can beby deed, by writing, by conduct or even orally. See Montreal Trust Co. v.Matthews, [1979] 3 W.W.R. 621 (B.C. S.C.) (QL) at paras 21 to 26; R.F.Barlow, et al, Williams on Wills, 9th ed, vol 2 (London: LexisNexis,2008) at 1078.

27 Neither party was able to provide me with a case that spoke to the testfor determining a person’s capacity to disclaim a bequest. However, inLeger v. Poirier, [1944] S.C.R. 152 (S.C.C.), a case dealing with thecompetence of the testatrix at the time she executed her will and whethershe was unduly influenced by her son when she executed her will, theSupreme Court said this at 161-62:

... But there is no doubt whatever that we may have testamentaryincapacity accompanied by a deceptive ability to answer questions ofordinary and usual matters: that is, the mind may be incapable ofcarrying apprehension beyond a limited range of familiar and sug-gested topics. A “disposing mind and memory” is one able to com-prehend, of its own initiative and volition, the essential elements ofwill-making, property, objects, just claims to consideration, revoca-tion of existing dispositions, and the like; this has been recognized inmany cases:

Marsh v. Tyrrell and Harding [(1828) 2 Hagg. Ecc. R. 84, at 122.]:

It is a great but not an uncommon error to suppose thatbecause a person can understand a question put to him,and can give a rational answer to such question, he is ofperfect, sound mind, and is capable of making a will forany purpose whatever; whereas the rule of law, and it isthe rule of common sense, is far otherwise: the compe-tency of the mind must be judged of by the nature of theact to be done, and from a consideration of all the circum-stances of the case.

[Emphasis added]

28 This suggests that the standard for mental capacity to revoke or dis-claim is a disposing mind and memory. Thus, when challenging themental competence of a beneficiary to disclaim, it is incumbent on the


challenger to prove on a balance of probabilities that at the time the dis-claimer was executed, the beneficiary did not have a disposing mind ormemory. In my view, a disposing mind would entail (1) that the benefici-ary understood what he or she was doing, (2) that he or she understoodwhat was being given to them and by who, and (3) that he or she under-stood what they were giving up.

29 In the present case, there is conflicting evidence on the issue ofwhether Rita Kusch was mentally competent at the time she signed thehandwritten disclaimer of her interest in her sister Olive’s estate and laterwhen she signed the typewritten disclaimer.

30 When Rita was in the hospital in November 2011, the doctor had con-cerns regarding her cognition. When she was in the hospital again inMarch 2013, it was noted that she was consistently disoriented to timeand place, did not know why she was in the hospital, had difficulty fol-lowing commands, had lower reasoning and problem solving and lowermemory functioning. Her doctor recommended that she be admitted to along-term personal care facility.

31 Upon her discharge on May 19, 2013, Rita did not return to PrestonPark but instead went to Arbor Villa Care Home, a long-term personalcare facility. On the intake form, it was noted that Rita’s medical historyincluded dementia. Rodalyn Gamueda was the personal care provider atArbor Villa assigned to Rita. In an affidavit, Ms. Gamueda deposed thatfor the first two weeks after her arrival, Rita was very confused, ex-pressed that she needed to return to the hospital and complained that shedid not know where she was or why she was there. Thereafter Ms.Gamueda noted Rita to be consistently confused. Rita would forgetwhether she had meals or could not remember if she had taken her medi-cations. She would complain about paying exorbitant prices for mealseven though no such fees were actually paid. On occasion, Rita wouldrefer to Ms. Gamueda as her daughter. Rita’s son, James, visited her reg-ularly but she could not remember him coming and would complain thathe never visited her.

32 In July 2013, after Olive Muller had passed away, Brian Dolan wentto visit James Kusch. Brian advised James that Olive’s estate lawyerneeded all the legal documents for the sale of the various properties thatRita sold for Olive as her attorney. Brian also inquired as to where Ritawas living. James told him she was at Arbor Villa.

33 In August 2013, Brian Dolan and his wife, Olga, went to see Rita atArbor Villa. Ms. Gamueda was present when they were there. According


to her, Rita did not recognize either Brian or Olga initially. When Brianmentioned his name there was some familiarity with him but still notwith Olga. While they were there, they asked Rodalyn to act as witnessto Rita’s signature on some papers. They told her the papers had to dowith Rita’s sister’s will but they would not let her see the papers. Ac-cording to Rodalyn, Brian Dolan told her that Rita’s son, James, knewthey were there to talk to Rita about her sister’s will and that James wasokay with Rita signing off money to them. Rodalyn further deposed thatOlga Dolan was very anxious and pushy and told Rodalyn to just sign thedocument as Rita does not need the money anyway.

34 After Brian and Olga Dolan left, Ms. Gamueda asked Rita if sheknew what the papers were about and Rita said that it was to give Brianthe money. When Rodalyn asked Rita why she did that, she said that shedid not know.

35 The respondent filed contradictory material. Brian Dolan stated thathe and his wife, Olga, met with James Kusch on August 13, advised himthat Rita was named as an executor of Olive’s estate and may need torenounce. He asked James where Rita was living and was told ArborVilla. Later that day, he and Olga went to see Rita at Arbor Villa. Whenthey got there, they met with Ms. Gamueda and Rita and told them thatthey were there to see Rita because she was the executor of a will. Theysaid that she would likely have to renounce her executorship because ofher physical health.

36 According to Brian, he spoke with Rita and she agreed that she wouldnot be able to act as Olive’s executor due to her health. He said that sheknew that she was entitled to a large inheritance but that she did not wantOlive’s money. Brian told Rita that he had met with a financial advisorfrom Olive’s bank and the advisor said that if Rita was not going to actas an executor she needed to sign a renunciation. Brian deposed that hehad handwritten a renunciation then and there and Rita asked him to addin a line that she did not wish to receive any money from Olive’s estate.He did so. He then read the document to Rita and according to him, sheunderstood it and signed it. He then had Rodalyn Gamueda witness hersignature. After this handwritten document had been executed, Brian andOlga asked Rita if she had deposited the money from the sale of Olive’shouse into Olive’s bank account. Rita responded that she did not wantany of Olive’s money, she had her own money and that the money inOlive’s account was Olive’s money.


37 The handwritten renunciation signed by Rita was not sufficient forthe estate lawyer. As a result he drafted a more formal renunciation ofprobate and had Brian re-attend to Arbor Villa to have Rita sign this doc-ument. On August 23, 2013 Brian and Olga went back to see Rita andhad her sign this second document. Olga witnessed Rita’s signature.

38 While they were there on August 23, the Dolans had a second type-written document that they had Rita sign. This document was a renuncia-tion of her bequest from Olive’s estate. It was witnessed by Olga Dolanand Rodalyn Gamueda. However there was no evidence as to who pre-pared this document, whether either Brian or Olga explained it to Rita,whether they told her why she needed to sign it or whether they askedher if she understood it and was prepared to sign it.

39 Finally, Brian Dolan said that he spoke with Rita a number of timesbefore she passed away and never had any concerns about her mentalcapacity or mental health. He questioned Ms. Gamueda’s recollection ofwhat occurred in August at Arbor Villa and denied much of what shesaid. He pointed out that Rita Kusch had executed a will in January 2012and numerous documents selling Olive’s cabin in September 2012 andnobody had any concerns about her mental capacity then.

40 Olga Dolan also filed an affidavit in these proceedings. Her evidenceabout what occurred on August 13 and 23, 2013 is much the same asBrian’s evidence. Olga stated that she and Brian were close with Rita andover the years they visited with her on many occasions. She stated thaton more than one occasion Rita told her that she was not interested inOlive’s money. Over the last few years, she acknowledged that Rita hadbecome hard of hearing but said that Rita was still able to have a conver-sation and fully express her wishes. At no time did she ever questionRita’s mental capacity and she is satisfied that it was Rita’s own decisionto disclaim her interest in Olive’s estate.

41 Rita Kusch can only disclaim her interest in her sister Olive’s estate ifshe had a disposing mind and memory. As noted above, the evidence ofthe mental capacity of Rita on August 13 and 23, 2013 is conflicting. Ihave concluded that it is not possible to decide that issue of capacity onthe basis of the affidavit evidence filed. When I consider the somewhatsuspicious circumstances that resulted in the creation of the disclaimers,that the party that stands to gain the most from Rita’s disclaimer preparedthe documents and his spouse witnessed Rita’s signature on at least oneof the disclaimers, it reinforces my decision that a trial of the issue is


required. At a trial, more and better evidence can be called and subject tocross-examination so this serious issue can be properly resolved.

(b) Did Brian Dolan and/or his spouse unduly influence the late RitaKusch to disclaim her interest in the estate of Olive Regina MarieMuller?

42 The doctrine of undue influence was summarized by Schwann J. inThorsteinson v. Olson, 2014 SKQB 237, 452 Sask. R. 160 (Sask. Q.B.).At paras. 60 to 65 she stated:

60 Halsbury’s Laws of Canada, Food/Gifts, 1st ed. (Markham, ON:LexisNexis Canada, 2014) at p. 299, describes the concept of undueinfluence in the following way:

Undue influence is influence which overbears the will ofthe person influenced so that in truth what he or she doesis not his or her own act. The domination of another per-son’s will may occur through manipulation, coercion oroutright but subtle abuse of power. [Footnotes omitted]

61 Geffen v. Goodman Estate [1991] 2 S.C.R. 353, 81 D.L.R. (4th)211, a decision from the Supreme Court of Canada, is the controllingauthority on the doctrine of undue influence. Geffen affirms the his-toric, common law doctrine and the underlying bases upon which itmay be invoked to set aside voluntary gifts.

62 The first basis, or category, is a finding of actual undue influence.Actual undue influence is said to arise where the gift is the result ofinfluence expressly applied by the donee. At para. 26 of Geffen theCourt said:

... First, there are the cases in which there has been someunfair and improper conduct, some coercion from outside,some overreaching, some form of cheating, and generally,though not always, some personal advantage obtained bya donee placed in some close and confidential relation tothe donor ....

63 The second basis is a recognition that persons standing in certainrelationships with another will be presumed to be in relationships ofinfluence over the other until the contrary is proven.

64 The court in Geffen primarily explored the second basis for invok-ing the doctrine, i.e. the presumption of undue influence. The courtbegan its analysis with the observation that equity has long recog-nized that transactions between persons standing in certain relation-ships to one another will be presumed to be relationships of influenceuntil the contrary is shown. (Geffen, para. 29) The question of which


relationships give rise to this presumption was resolved in Geffen bythe application of a two-prong approach. The first line of inquiry in-volves an examination of the actual relationship which exists be-tween the parties and the second shifts to an examination of the na-ture of the transaction. The court said:

42 The first question to be addressed in all cases iswhether the potential for domination inheres in the natureof the relationship itself. This test embraces those rela-tionships which equity has already recognized as givingrise to the presumption, such as solicitor and client, parentand child, and guardian and ward, as well as other rela-tionships of dependency which defy easy categorization.

43 Having established the requisite type of relationship tosupport the presumption, the next phase of the inquiry in-volves an examination of the nature of the transaction.When dealing with commercial transactions, I believe thatthe plaintiff should be obliged to show, in addition to therequired relationship between the parties, that the contractworked unfairness either in the sense that he or she wasunduly disadvantaged by it or that the defendant was un-duly benefited by it....

44 By way of contrast, in situations where considerationis not an issue, e.g., gifts and bequests, it seems to mequite inappropriate to put a plaintiff to the proof of unduedisadvantage or benefit in the result. In these situationsthe concern of the court is that such acts of beneficencenot be tainted. It is enough, therefore, to establish thepresence of a dominant relationship.

65 Once a special relationship is established, the onus shifts to thedefendant, or donee, to rebut the impugned transaction. Geffen,supra, described the requisite onus at para. 45:

45 ...As Lord Evershed M.R. stated in Zamet v. Hyman,supra [1961] 3 All E.R. 933 at p. 938, the plaintiff mustbe shown to have entered into the transaction as a resultof his own “full, free and informed thought”. Substan-tively, this may entail a showing that no actual influencewas deployed in the particular transaction, that the plain-tiff had independent advice, and so on. Additionally, Iagree with those authors who suggest that the magnitudeof the disadvantage or benefit is cogent evidence going tothe issue of whether influence was exercised.


43 In the present case, the applicant has suggested that Rita may havebeen unduly influenced by the Dolans to disclaim her bequest. Unfortu-nately, besides alleging this in their application the applicant has not pro-vided a shred of evidence that Rita Kusch was actually unduly influencedor that there was a presumption of undue influence at play here. Therebeing no evidence before me that Rita was manipulated or coerced tosign the disclaimers or make the statements attributed to her or that therewas some relationship between Brian Dolan and/or Olga Dolan and RitaKusch that gave rise to the potential for domination or coercion to exist, Idismiss this part of the application.

(c) Should the estate of Rita Kusch, be required to provide anaccounting of the late Rita Kusch’s actions as power of attorney forOlive Muller to the estate of Olive Regina Marie Muller?

(d) Should Jan Ostlund and James Kusch be required to provide anaccounting of their actions as powers of attorney for Rita Kusch tothe estate of Olive Regina Marie Muller?

44 As these two issues are interrelated, it is convenient to deal with themtogether. It is not disputed that on February 28, 2008 Olive Muller ap-pointed her sister, Rita Kusch, as her attorney under an Enduring Powerof Attorney. By the spring of 2009, Olive was suffering from dementiaand no longer able to manage her affairs. As a result, and pursuant to theaforementioned Enduring Power of Attorney, Rita began paying Olive’sbills and filing Olive’s income tax returns. Rita also sold real propertyowned by Olive including her home at 305 Avenue P North, a quartersection of land in the R.M. of Harris, residential property in the Town ofMiddle Lake and a cabin at Wakaw Lake.

45 However, Rita’s own physical and mental capabilities were beginningto diminish and she saw fit to appoint her own attorney. On August 14,2009 she executed a document designating Jan Ostlund as her attorney.On July 10, 2010 she executed a new Enduring Power of Attorney nam-ing either James Kusch or Jan Ostlund as her attorney.

46 Despite her issues, for a time Rita remained capable of making herown personal and financial decisions and those of Olive’s. During theperiod that Jan Ostlund was her sole attorney, she did not have to makeany decisions on Rita’s behalf. After July 10, 2013, Ms. Ostlund nevermade any decisions for Rita but James Kusch began helping his mothermanage her affairs and Olive’s. While he did not initially have to utilize


his Power of Attorney, he did have to remind Rita when bills were dueand make sure she paid them on time. Eventually though he had to bringher cheques to sign, cue her to sign the cheques and then send the che-ques out to pay her bills and Olive’s bills. After Rita’s hospitalization inMarch 2013, James did begin to exercise his Power of Attorney in rela-tion to his mother’s affairs to the extent of authorizing her placement atthe Arbor Villa long-term care home, paying her bills at this home andpurchasing her medications. While it appears he exercised his attorneyover his mother’s affairs until she passed away in March of 2014, overthis time it looks like he was still bringing her cheques to sign to payOlive’s bills, was cuing her to sign them and was making sure they weresent out.

47 In August 2013, after Olive Muller had passed away, Brian Dolanmet with James Kusch at his residence. Brian told James that he waslooking after Olive’s estate and that Mr. Balon, the lawyer for the estate,needed all the legal real estate documents for the various properties thatRita sold on Olive’s behalf as her attorney. James said that he would putthese documents together and forward them to Mr. Balon.

48 James Kusch has deposed that all funds that Rita received for the saleof Olive’s properties were deposited into Olive’s bank account at the Af-finity Credit Union. James also said that on April 30, 2014 he couriered apackage to Mr. Balon’s law firm in Prince Albert that contained all docu-mentation that he had pertaining to any real estate transactions hismother Rita completed under her Power of Attorney for Olive. Unfortu-nately there is no evidence before me as to what those documents wereor what properties they were in relation to. Brian Dolan said that Mr.Balon retired and the estate file was forwarded to his present counselalthough there is no evidence when that occurred. According to Mr. Do-lan, there were no documents regarding the property transactions in thefile his new counsel received from Mr. Balon.

49 The estate’s new counsel has requested copies of all documents relat-ing to the property sales that were completed by Rita Kusch as attorneyfor Olive Muller, an accounting for the time period that Rita was actingas Olive’s attorney and copies of Rita’s bank account records for the timeperiod that Rita was acting as Olive’s attorney. Counsel for Rita Kusch’sestate has not, to date, provided the requested documentation.

50 The applicant relies on the decision in the case of Tinline v. TinlineEstate, 2013 SKQB 167, 420 Sask. R. 81 (Sask. Q.B.) [Tinline]. In thatcase, the respondent had been appointed power of attorney for the gran-


tor and upon his death, the executor of the grantor’s estate. The appli-cant, the deceased’s son, applied to the Court for an order that the re-spondent provide an accounting from the date the Power of Attorney wasgranted to the present date. The Court determined that it did not haveauthority under s. 18 of The Powers of Attorney Act, 2002, SS 2002, c P-20.3, to order an accounting from the respondent in her capacity as eitheran attorney or the executrix of the estate because the grantor/testator wasdeceased. However, the Court did find that they had the authority togrant the requested accounting pursuant to s. 55 of The Trustee Act,2009, SS 2009, c T-23.01, and the Court’s inherent jurisdiction. Interest-ingly, despite the wording of s. 55 of The Trustee Act, 2009 that the trus-tee “shall” provide an accounting on request, the fact that the Court hadthe authority to grant the order for an accounting did not mean that theymust grant the order to account. Justice Barrington-Foote held that anaccounting should not be ordered if no cause is shown.

51 The Tinline case, while an informative decision, is of limited assis-tance to the present facts. Specifically, at the time Tinline was decided,The Powers of Attorney Act, 2002, had not yet been amended to includes. 18.1. Whereas s. 18 of The Powers of Attorney Act, 2002 dealt with arequest for an accounting while the Power of Attorney was still existing,s. 18.1 addressed the situation where the authority of the attorney hadterminated. It states as follows:

18.1(1) Subject to subsection (2), every attorney acting pursuant toan enduring power of attorney shall, on the termination of the author-ity of the attorney:

(a) provide a final accounting, in the prescribed form, of the deci-sions made, actions taken and consents given respecting thegrantor to:

(i) a person named by the grantor in the enduring powerof attorney;

(ii) if no person is named pursuant to subclause (i), anadult family member of the grantor;

(iii) a decision-maker appointed pursuant to The AdultGuardianship and Co-decision-making Act, if any;

(iv) a property guardian appointed pursuant to The Miss-ing Persons and Presumption of Death Act, if any;

(v) if the grantor is deceased, the executor or administra-tor of the grantor’s estate; and

(vi) the public guardian and trustee; and


(b) verify by affidavit the final accounting required pursuant tothis subsection.

(2) If the grantor is deceased:

(a) a final accounting is not required when the attorney is the solebeneficiary of the grantor’s estate; and

(b) a beneficiary of the grantor’s estate, other than a person men-tioned in subsection (1), may request a final accounting.

(3) A final accounting required pursuant to this section must be pro-vided within six months after the date on which the attorney’s au-thority terminates.

(4) The public guardian and trustee may carry out an investigation toensure the accuracy of the final accounting.

(5) If an attorney does not provide a final accounting pursuant to sub-section (1) or clause (2)(b), any person listed in clause (1)(a) or(2)(b) may apply to the court for an order directing the attorney toprovide that final accounting to the persons entitled to it pursuant tothis section.

52 Unlike Tinline, recourse to The Trustee Act, 2009 on the present factsis not required. Rita Kusch’s authority to act as Olive Muller’s attorneyterminated when Olive passed away on July 19, 2013. Pursuant to s. 18.1of The Powers of Attorney Act, 2002, Mr. Dolan, as executor of Olive’sestate, has requested a final accounting of the time period that the Endur-ing Power of Attorney was granted by Olive to Rita to the date that shepassed away. No final accounting was provided within the six-monthtimeframe stipulated in s. 18.1(3) of The Powers of Attorney Act, 2002,and has still not been provided as of today’s date. Complicating mattersis the fact that Rita herself passed away in March 2014, some eightmonths after her sister, Olive.

53 Despite her passing, I am satisfied that this requirement to accounthas not been extinguished. One of the general duties that devolves in lawto an executor is to meet all uncompleted obligations of the deceased.(See: James MacKenzie, Feeney’s Canadian Law of Will, looseleaf (Rel59-Dec/2015) 4th ed (Toronto: LexisNexis, 2000) at 8-11. Thus, Rita’sduty to provide a final accounting falls to the executors of her estate.

54 As aforementioned, my brother Justice Barrington-Foote in Tinline,found that despite the word “shall” in s. 55 of The Trustee Act, 2009,there had to be a reason to order the accounting. He said:

21 The fact that the court has the authority to grant an order for anaccounting does not mean I must grant that order. That is so notwith-


standing the language of s. 55(1) of The Trustee Act, which statesthat the trustee shall provide an accounting on request. The learnedauthors of Waters, supra, [D.W.M. Waters, Mark R. Gillen and Lio-nel D. Smith, Waters’ Law of Trusts in Canada, 3d ed. (Toronto:Thomson Carswell 2005), at p. 1108:] make the point in the follow-ing terms (at pps. 1065-66):

... As far as asking the court for an accounting is con-cerned, none of these persons has an absolute right. As wehave seen, harassing the trustee is vexatious litigation, andwhether the court will order an accounting depends en-tirely upon the court’s discretion and the circumstances ofthe case. Only where the trustee can be shown to be indefault of his duties will this normally be given....

See also Liddell v. Deacou [1873] O.J. No. 148 (QL) (Ont. Ct. Ch.).

22 Although it is my view that it is not always necessary to provethat there has been a default by the trustee before an accounting isordered, an accounting should not be ordered if no cause is shown. Inthis case, the applicant has failed to meet that burden. He has askedfor an order that the respondent account despite the fact that there isno evidence she exercised her authority except to carry out very lim-ited and specific instructions from the grantor. There is no evidenceshe exercised her authority after he became incompetent. A propertyattorney should not be required to provide an accounting for a periodwhen her power was neither effective nor exercised, and in the ab-sence of evidence that she had exercised her authority other than asinstructed and in what was essentially an agency capacity. I note onthis point the reasoning in Fair v. Campbell (Estate) 3 E.T.R. (3d)67, [2002] O.J. No. 5926 (QL) (Ont. Sup. Ct.), at paras. 29 - 33.

55 Given the similarity in wording in s. 18.1 of The Powers of AttorneyAct, 2002 and s. 55 of The Trustee Act, 2009 and applying this samereasoning as Barrington-Foote J., I am satisfied an applicant must showcause why an accounting should be ordered. Here, Brian Dolan’s affida-vit evidence is that he was concerned that James Kusch may have beenutilizing both Rita’s assets and Olive’s assets for his own personal bene-fit. He states that he had no idea whether or not Rita or James were act-ing in Olive’s best interests or for their own interests and that he sus-pected James may have been using the Power of Attorney for his ownpersonal benefit. He said he believed that James may have utilized Ol-ive’s assets for his benefit or Rita’s benefit by placing Olive’s funds inRita’s account. However, Mr. Dolan has provided no evidence substanti-ating these bald assertions.


56 I note that James Kusch did send a package of documents to the es-tate’s then counsel that appears to have been an accounting of sorts re-garding Rita’s attorney for Olive. As executor of Olive’s estate, Mr. Do-lan would have access to her bank records and other financialinformation. Yet even with all this material, he is unable to point to anyanomaly that would support his allegations.

57 It is clear from his numerous affidavits that Mr. Dolan’s concern ismore specific in nature. Rita sold four of Olive’s properties under theattorney granted to her however Mr. Dolan is unable to determine ifthese properties were sold for fair market value and in at least three ofthe cases, what they were sold for and whether the proceeds from thesales were deposited into Olive’s bank account. I am somewhat surprisedthat he is unable to piece these transactions together. He should be ableto obtain a copy of the transfer documents from Information ServicesCorporation and should then be able to cross-reference the date of thesale with Olive’s bank records to locate the deposit, if indeed it wasmade. I am equally surprised that he has been unable to obtain copies ofthe agreements for sale, the transfer documents and the statements of ad-justments from the law firm that looked after the transactions for Olive.As the principal in the transaction, Olive, or her estate, should be entitledto these documents even if direction regarding the transaction came fromher attorney agent.

58 In any event, while I am not satisfied on the material filed before methat Rita’s estate must file a full accounting of Rita’s actions as Olive’sPower of Attorney, I am satisfied that an order for an accounting limitedto the real estate transactions that Rita brokered on Olive’s behalf is re-quired. As a result, there will be an order that Rita’s estate provide anaccounting of the four sales of Olive’s real property that she carried outas Olive’s attorney. To the extent that it is possible, this accountingshould include a copy of any listing agreements in relation to the proper-ties, a copy of the accepted offers to purchase, a copy of the solicitor’sstatement of adjustments for each transaction and an indication as towhen the proceeds from the respective sales were deposited into Olive’saccount and what account they were deposited into.

59 I am not prepared to make an order that Jan Ostlund or James Kuschprovide an accounting of their actions as Power of Attorney for RitaKusch to the estate of Olive Muller. Jan Ostlund never made any deci-sions for Rita Kusch as her attorney and while James Kusch may haveassisted his mother in having the properties listed or sold, the evidence


before me is that Rita made the decisions regarding the properties, shewas competent to do so at the time that she made those decisions and shesigned the appropriate documents for the properties to be sold. As hasbeen pointed out in counsel’s material, s. 14(1) of The Powers of Attor-ney Act, 2002, specifically states that an attorney cannot delegate the au-thority granted under an Enduring Power of Attorney unless it states oth-erwise. In this case, the Enduring Power of Attorney signed by Oliveappointing Rita says nothing about Rita being able to delegate her au-thority to another. Therefore neither Jan Ostlund nor James Kusch couldhave made decisions on Olive’s behalf as the Power of Attorney for RitaKusch.

60 Even if I am wrong on this reasoning, the applicant in this case is theestate of Olive Muller by its executor. I have no authority to grant anaccounting to Olive’s estate as the estate is not a beneficiary of Rita’sestate. Moreover, the estate does not fall within one of the listed catego-ries of persons that can demand an accounting pursuant to s. 18.1 of ThePowers of Attorney Act, 2002.

(e) Should Jan Ostlund, executrix of the estate of Rita Kusch, berequired to provide an accounting of the estate of Rita Kusch toBrian Dolan, executor of the estate of Olive Regina Marie Muller?

61 In letters dated April 15, 2015 and May 5, 2015, sent to the lawyerrepresenting the estate of Rita Kusch, legal counsel for the Olive Mullerestate requested an accounting be done of the estate of Rita Kusch andforwarded to them. The basis for their request was that it “will provideinformation as to her assets and will help determine if any amounts wereremoved from her account by either Jan Ostlund or Jim Kusch”, that it“will also be pertinent to the Estate in determining the order the benefi-ciaries are to be paid and to determine if the POA’s took advantage ofRita Kusch and Olive Muller” and “as Brian Dolan is a beneficiary of theEstate is entitled as beneficiary to receive an accounting particularlyunder the current circumstances”. Neither Ms. Ostlund as the executrixof Rita Kusch’s estate or counsel for the estate have provided the re-quested accounting. The applicant asks for an order pursuant to s. 55 ofThe Trustee Act, 2009 requiring Ms. Ostlund as executor of the RitaKusch estate to provide an accounting to the applicant who is a benefici-ary of the estate.

62 There is no question that there is a duty on an executor of an estate torender accounts when properly called upon to do so. Section 35 of The


Administration of Estates Act, SS 1998, c A-4.1, states that an executormust render a full accounting of the executorship within two years afterthe grant of letters probate. However, a personal representative who isadministering an estate is a trustee who owes a fiduciary duty to the ben-eficiaries of the estate. (See: Tatum v. Tatum, 2011 ABQB 253 (Alta.Q.B.) at para 28.) Consequentially as Justice Barrington-Foote found inthe Tinline decision, the Court has authority pursuant to s. 55 of TheTrustee Act, 2009 to order an accounting. Section 55 reads as follows:

55(1) On the request of a beneficiary of the trust, or the beneficiary’sproperty attorney or property guardian, a trustee shall provide an ac-counting to the beneficiary.

(2) If a beneficiary of the trust, or the beneficiary’s property attorneyor property guardian, has been unable to obtain an accounting fromthe trustee in accordance with subsection (1), the beneficiary of thetrust, or the beneficiary’s property attorney or property guardian,may apply to the court for an order directing the trustee to provide anaccounting to the court or to the beneficiary.

(3) Notwithstanding anything to the contrary in the terms of a trust, ifa beneficiary of the trust or other interested person has requested in-formation concerning the accounts of a trustee, and the trustee hasrefused to comply with the request in a reasonable and timely man-ner, the court may order the trustee to pass accounts in accordancewith section 54.

63 In order to fall within this section, the request for an accounting mustbe made by a beneficiary, their property attorney or property guardian orother interested person. Unfortunately the applicant is none of these.Brian Dolan has brought this application as executor of the estate of Ol-ive Muller. But neither Olive Muller nor her estate is a beneficiary underRita Kusch’s will nor is Olive Muller or her estate, in my opinion, aninterested person. There is no evidence before me that Olive’s estate hasany interest in Rita’s estate. The reasons set forth in counsel’s April 15and May 5 letters do not disclose any interest. Mr. Dolan suggested in hisaffidavit sworn June 2, 2015, that an accounting of Rita’s estate was re-quired “to determine if all the funds from the sale of Olive’s propertywere placed in Rita’s bank account.” But he does not provide any evi-dence that any proceeds from the sale of Olive’s properties were everdeposited into Rita’s bank account or that there is a possibility that thateven occurred. Moreover, an accounting by the executor of an estate isan accounting of their executorship and nothing more. It would not dis-close how Rita accumulated her assets and liabilities but would only


show what they were at the time of her death and how the executor dealtwith the estate thereafter. Thus I am not satisfied I have the authorityunder s. 55 of The Trustee Act, 2009 to order that Ms. Ostlund provide anaccounting of Rita Kusch’s estate to Mr. Dolan as executor of OliveMuller’s estate. Even if I did have that authority, I am not satisfied thatcause has been shown, on these particular facts, to order the accounting.

64 Brian Dolan, himself, is a beneficiary of Rita Kusch’s estate. As such,he may very well be entitled to an accounting of Rita’s estate from JanOstlund, the executrix. But that application should be made in his per-sonal capacity and should be addressed directly in the estate of RitaKusch.

(f) Should the law firm of Mathiason Valkenburg & Polishchuk beremoved as counsel for the estate of Rita Kusch?

65 The applicant argues that the law firm of Mathiason Valkenburg &Polishchuk should be removed as counsel for the Rita Kusch estate be-cause it is “highly likely” that Ben Valkenburg, one of the senior partnersof the firm, will be called as a witness in the case. According to the ap-plicant’s affidavit evidence, Mr. Valkenburg was Rita Kusch’s lawyer.He prepared an Enduring Power of Attorney for Rita and witnessed hersignature on that document on July 9, 2010. He drew up a will for Ritaand witnessed her signature on the will on January 31, 2012. In Septem-ber 2012, Rita purportedly signed documents to sell Olive’s cabin atWakaw Lake at Mr. Valkenburg’s office. The applicant argues that basedon these meetings, Mr. Valkenburg may be able to shed some light onRita’s mental capacity.

66 The Code of Professional Conduct adopted by the Law Society ofSaskatchewan contains a section dealing with a lawyer as a witness. Rule4.02(1) contained within that section states:

4.02(1) A lawyer who appears as advocate must not testify or submithis or her own affidavit evidence before the tribunal unless permittedto do so by law, the tribunal, the rules of court or the rules of proce-dure of the tribunal, or unless the matter is purely formal oruncontroverted.

67 Gerein J. considered this rule in the case of Saskatoon Credit UnionLtd. v. Creighton Holdings Ltd. (1987), 64 Sask. R. 297 (Sask. Q.B.). Inthat case, the applicant was alleging that the law firm representing theplaintiff was in a conflict of interest because in their view, three lawyers


from the law firm would likely testify at the trial in the case. In determin-ing that there was no conflict of interest, Justice Gerein said:

[13] From my reading of the authorities, I conclude that a lawyershould not serve as both advocate and witness; nor should membersof his firm testify in proceedings wherein he is serving as advocate.This court has jurisdiction to restrain either situation, but it should beexercised with care and only to prevent mischief. For a contrary viewas to restraining a lawyer from acting where his partners or associatestestify, see Timlin Estate v. Timlin, (1984) 30 S.R. 239 (Sask. Q.B.).

. . .

[15] In the instant case, Mr. Creighton simply expresses an opinionthat Ms. Hopkins along with Messrs. Shaw and Litman will testify atthe trial. At this stage of the proceedings this is only conjecture onhis part. Were an order to be made on the basis of such conjecture, itcould give rise to an abuse whereby a litigant’s choice of counselcould be limited.

68 Similarly in the present case, counsel for Rita Kusch’s estate has notstated that Mr. Valkenburg would be called as a witness at trial. All theapplicant can offer is conjecture that Mr. Valkenburg could be a witnessat trial. Frankly, I am not even satisfied that the conjecture is very strong.I fail to see how Mr. Valkenburg’s dealings with Rita Kusch in 2012would have any bearing on her mental capacity 12 to 20 months later. Asa result, the applicant has not established that the law firm of MathiasonValkenburg & Polishchuk should be removed as counsel for the RitaKusch estate.

69 The applicant relies on the case of Prokopetz v. Ruf, 2008 SKQB 276,319 Sask. R. 238 (Sask. Q.B.), as supporting their position. However thefacts in that case are distinguishable from the facts herein. In that case,the mental competency of the deceased at the time she executed both aPower of Attorney and a will were in issue. A lawyer in the law firmrepresenting the estate drafted both documents and witnessed the de-ceased execute them. It was admitted by the estate lawyer that at somepoint her colleague may have to give evidence on the issue of capacity.The Court was satisfied that if the matter went ahead, that lawyer wouldmost assuredly be required to testify. This is not the evidence in the casebefore me.

70 Before leaving this issue, I feel obliged to make comment on anotherconflict of interest raised by Mr. Dolan in a number of his affidavits filedon these applications but not addressed by counsel in his argument. Atdifferent parts of his affidavits, Mr. Dolan deposed that it was his under-


standing that Mr. Valkenburg represented Olive Muller under Rita’s in-struction as Power of Attorney in relation to the different sales of Olive’sproperty. The insinuation being that it would be a conflict of interest forMr. Valkenburg’s office to represent a present client against a formerclient.

71 If Mr. Valkenburg did indeed represent Olive in the real estate trans-actions at the direction of Rita Kusch as Olive’s attorney and if there is avalid issue concerning whether the funds from those transactions weredeposited to Olive’s account, Mr. Valkenburg would certainly be a wit-ness and/or possibly a party to the litigation. If this were the case, his lawfirm would be in a conflict of interest position as far as their continuedrepresentation of Rita Kusch’s estate. However, there is no evidencebefore me that Mr. Valkenburg or his law firm represented Olive in thesale of any of her real property.

72 Mr. Dolan says that his understanding of Mr. Valkenburg’s involve-ment in the sale of Olive’s land is based on a comment made by JamesKusch in his affidavit that James took care of all the arrangements forRita to list and sell Olive’s cabin at Wakaw Lake and further that Ritasigned the legal transfer documents under her Power of Attorney uponhim cuing her to do so. But nowhere in that paragraph or in any otherparagraph in James Kusch’s affidavit does it state that Mr. Valkenburg,or his law firm, was representing Olive on the sale of the cabin or anyother parcel of land. As a result, I have no evidence that Mr. Valkenburgever represented Olive Muller and as such there is no conflict of interestand no reason for me to restrain the law firm of Mathiason Valkenburg &Polishchuk from continuing to represent the estate of Rita Kusch at thistime.

(g) Should the law firm of Mathiason Valkenburg & Polishchuk bedirected to disclose its files pertaining to the will of the deceased,Rita Kusch, and any files wherein they acted for the deceased, OliveMuller, to Brian Dolan, the executor of the estate of Olive ReginaMarie Muller?

73 The applicant, Brian Dolan as executor of Olive Muller’s estate,wants the law firm of Mathiason Valkenburg & Polishchuk to disclosetheir file in relation to the will of Rita Kusch and any file wherein theyacted for the deceased, Olive Muller. Mr. Dolan deposed that as RitaKusch’s mental capacity in August 2013 has been placed in question, thenotes that Mr. Valkenburg made when he prepared and witnessed Rita’s


will on January 31, 2012, would be instructive on this issue of her mentalcapacity. He states that he does not know whether Mr. Valkenburg re-ferred Rita to a medical professional to determine her capacity to sign herwill but his file for Rita’s will may contain documents that indicate what,if any, concerns he had.

74 As to the second request, Mr. Dolan believes that Mr. Valkenburg, orhis office, acted for Olive on the sale of her properties at the request ofRita Kusch as Olive’s attorney. He would like these files to be able todetermine how much the properties were sold for, whether they weresold for fair market value, when they were sold and where the proceedswere sent or deposited.

75 It appears that counsel for Olive’s estate wrote counsel for Rita’s es-tate on both April 15, 2015 and May 5, 2015 requesting these documents.Counsel for Rita’s estate has not provided the requested documents. Inrelation to Mr. Valkenburg’s file concerning the will of Rita Kusch, itappears that their position is that these documents are not relevant to thewithin proceeding.

76 In cases such as this where disclosure of a lawyer’s files are beingrequested, the applicant must first demonstrate that the requested docu-ments are relevant. If the material is found to be relevant, the privilegeattaching to those documents must be shown to be waived, either explic-itly or by implication. (See: Mort v. Saanich School District No. 63,[1999] B.C.J. No. 386 (B.C. S.C.) at para 15 [Mort]; Davie v. Davie Es-tate, 2000 BCSC 1517 (B.C. Master).)

77 The applicant has not satisfied me that Mr. Valkenburg’s wills file forRita Kusch would be relevant. Relevancy refers to whether the docu-ments or information under consideration may relate to a matter in issue.The question I should ask myself is whether the requested material mightaid the applicant in a train of inquiry about the issues in the lawsuit. (See:Mort at para 16; Clausen v. Royal Inland Hospital, 2003 BCSC 496(B.C. S.C. [In Chambers]) at para 7.)

78 Here, there has been no suggestion that Rita Kusch was not compe-tent to execute her will in January 2012. The issue is whether she wasmentally competent to sign a renunciation of probate and a disclaimer ofher bequest in August 2013, some 20 months later. I fail to see how any-thing in Rita’s wills file would have any bearing on this issue. This isnothing but a fishing expedition on the part of the applicant and an ill-considered one at that. The applicant’s position must be that Rita Kuschwas competent to sign her will in January 2012 and she remained compe-


tent when she executed the renunciation and disclaimer in August 2013.But the respondent has never suggested that Rita Kusch was not compe-tent to sign her will. If the documents were produced and showed that inJanuary 2012 Rita did not have the mental capacity to sign her will thenshe certainly would not have been competent to sign any documentsthereafter. I do not understand how the applicant thinks that this wouldassist his argument.

79 There was some suggestion by counsel for the applicant in his May 5,2015 letter that Mr. Valkenburg’s notes may also provide insight intoRita Kusch’s intentions in relation to her estate and beneficiaries. But,Rita Kusch’s intention regarding her estate has no relevancy or possiblerelevancy to the matter of whether Rita Kusch was mentally competentin August 2013. Therefore I am not satisfied that the contents of Mr.Valkenburg’s file regarding the Rita Kusch will has any relevancy to theissue in this case and as such, I am not prepared to order that those docu-ments be disclosed.

80 Any files the Mathiason Valkenburg & Polishchuk law firm havewherein they represented Olive Muller in the sale of any of her propertiesare however a different story. While there is no evidence that the lawfirm did represent Olive in the sale of her properties, if indeed the lawfirm did represent Olive, these files are Olive’s files and I see no reasonwhy Olive, or in this case her estate, should not be entitled to them. Itwould certainly assist the estate in determining whether these propertieswere sold for fair market value and whether all proceeds from the differ-ent real estate transactions were deposited into Olive’s bank account.Given that Olive was the client, albeit at the behest of Rita Kusch as herattorney, Olive has a right to these files and no waiver of privilege isrequired. As such, there will be an order that any files in the possessionof Mathiason Valkenburg & Polishchuk wherein they acted for OliveMuller in the sale of any of her properties after February 29, 2008, bedisclosed to the applicant.

(h) Should Brian Dolan, executor of the estate of Olive Regina MarieMuller, be granted leave to cross-examine Rodalyn Gamueda onher affidavit sworn April 21, 2015?

81 Given that I am ordering a trial of the issue there is no need for me toaddress this request at this time. If the applicant wishes to discover Ms.Gamueda then he can bring an application to do so pursuant to The


Queen’s Bench Rules. If Ms. Gamueda is called as a witness at trial, theapplicant will have an opportunity to cross-examine her at that time.

Conclusion:82 In summary then, I order the following:

(1) There shall be a trial of the issue of whether Rita Kusch had themental capacity to disclaim her interest in the estate of Olive Re-gina Marie Muller on August 13 and/or 23, 2013. The burden ofproof will rest with the estate of Rita Kusch on a balance ofprobabilities. The parties are entitled to examine each other fordiscovery and the disclosure rules contained in The Queen’sBench Rules apply to the trial of this issue;

(2) The estate of Rita Kusch shall provide an accounting of the foursales of Olive Muller’s real property that Rita Kusch carried out asOlive’s attorney;

(3) The law firm of Mathiason Valkenburg & Polishchuk shall pro-vide a copy of any files wherein they acted for Olive Muller, orRita Kusch as attorney for Olive Muller, in the sale of any of Ol-ive Muller’s real properties after February 29, 2008; and

(4) Nothing shall be done under the grant of probate in the estate ofOlive Regina Marie Muller without leave of the Court, pendingthe decision on the trial of the issue.

83 Since both parties experienced mixed success on their respective ap-plications, there shall be no order as to costs.

Order accordingly.


[Indexed as: Parmar Estate v. Tiwari]

Paminder S. Parmar, Executor of the Estate of Surinder KaurParmar aka Surinder K. Parmer, Surinder Parmar and Dr.

Surinder Parmar, Plaintiff and Dhavinder Tiwari, Defendant


Docket: Nanaimo S69559

2016 BCSC 30

Adair J.

Heard: March 30-31; April 1-2, 7-10; August 17-20, 2015

Judgment: January 13, 2016*

Estates and trusts –––– Gifts — Types of gifts — Inter vivos gift — Miscella-neous –––– Deceased had two adult sons and sister, T — Older son was executorof estate — Deceased was diagnosed with stage four esophageal cancer in De-cember 2008, will was prepared in October 2009, and deceased passed away onJanuary 9, 2011 — Deceased left tangible personal property to be dividedequally between sons, and failing agreement, to be divided in shares of substan-tially equal value and left residue of estate to her sons — Will further providedthat, if on deceased’s death, she had no surviving dependants, all remaining pro-perty not otherwise disposed of was to go to T — Among estate assets was pro-perty owned by deceased registered in T’s name — On January 6, 2011, transferfor property was signed in which deceased was stated to be transferor and T wasstated to be transferee — Transfer stated that consideration for transfer was$250,000, however, no consideration was paid — Transfer form was submittedby T for registration on January 21, 2011 — Executor commenced claim for re-lief to effect that estate was entitled to declaration that T held title to property intrust for estate and for order that T transfer property title to estate — T failed toshow that deceased made valid and complete inter vivos gift of property toher — Accordingly, T held title to property in trust for estate and was ordered tocause legal title of property to be transferred to estate — Executor failed to showthat on January 6, 2011, deceased lacked capacity to make valid gift of pro-perty — After property did not sell and as she recognized that her cancer wasterminal, deceased probably did discuss with T possibility of transferring pro-perty to her as gift — Property was hard to sell and deceased’s general approachto estate planning was to dispose of her assets outside of her estate, leaving vir-

* Additional reasons at Parmar Estate v. Tiwari (2016), 2016 CarswellBC 834,2016 BCSC 540 (B.C. S.C.).

Parmar Estate v. Tiwari 125

tually nothing to go through probate — There were reasons why deceased wouldhave been disposed to make gift to T, who had provided care and companion-ship to deceased during illness at and end of her life — Deceased’s intention togift property to T was evidenced in deceased’s signing of transfer and provisionof cheques to T in order to cover expenses — However, gift was never perfectedduring deceased’s lifetime and could not be perfected after death — Mere act ofsigning transfer form was not effective to transfer or deliver anything and did nomore than to express intention to make gift — No conclusions could be drawn asto whereabouts of form transfer when deceased died — Second aspect of giftwas payment of taxes and evidence showed that, before she died, deceased madeno irrevocable delivery to T of money to pay taxes associated with propertytransfer.

Contracts –––– Formation of contract — Consensus ad idem — Intention ofparties –––– Deceased had two adult sons, and sister, T — Older son was execu-tor of estate — Deceased was diagnosed with stage four esophageal cancer inDecember 2008, will was prepared in October 2009, and deceased passed awayon January 9, 2011 — Deceased left tangible personal property to be dividedequally between sons, and, failing agreement, to be divided in shares of substan-tially equal value and left residue of estate to her sons — Will further providedthat, if on deceased’s death, she had no surviving dependants, all remaining pro-perty not otherwise disposed of was to go to T — Among estate assets was pro-perty owned by deceased registered in T’s name — On January 6, 2011, transferfor property was signed in which deceased was stated to be transferor and T wasstated to be transferee — Transfer stated that consideration for transfer was$250,000, however, no consideration was paid — Transfer form was submittedby T for registration on January 21, 2011 — Executor commenced claim for re-lief to effect that estate was entitled to declaration that T held title to property intrust for estate and for order that T transfer property title to estate — Issue fordetermination was whether deceased and T were parties to contract whereby de-ceased agreed to sell and T agreed to purchase property for price of $250,000 —Contract claim failed as there was never any agreement between deceased and Tthat T would pay anything for property, much less pay $250,000 — In order foragreement to be binding upon parties, they must have reached consensus on es-sential terms of contract — T’s evidence was that she communicated firmly todeceased that she was not interested in property if she was expected to pay forit — Words and actions of deceased and T did not establish intention to bebound contractually — T held title to property in trust for estate and was orderedto cause legal title of property to be transferred to estate.

Bills of exchange and negotiable instruments –––– Bills of exchange — Ca-pacity and authority — Forgery –––– Deceased had two adult sons, and sister,T — Older son was executor of estate — Deceased was diagnosed with stagefour esophageal cancer in December 2008, will was prepared in October 2009,


and deceased passed away on January 9, 2011 — Deceased left tangible per-sonal property to be divided equally between sons, and, failing agreement, to bedivided in shares of substantially equal value and left residue of estate to hersons — Will further provided that, if on deceased’s death, she had no survivingdependants, all remaining property not otherwise disposed of was to go to T —Among estate assets was property owned by deceased registered in T’s name —On January 6, 2011, transfer for property was signed in which deceased wasstated to be transferor and T was stated to be transferee — Transfer stated thatconsideration for transfer was $250,000, however, no consideration was paid —Transfer form was submitted by T for registration on January 21, 2011 — Exec-utor commenced claim for relief to effect that estate was entitled to declarationthat T held title to property in trust for estate and for order that T transfer pro-perty title to estate — Executor alleged that T forged deceased’s signature ontransfer document — Executor failed to satisfy burden on him to prove that sig-nature on transfer document was forgery — Circumstantial evidence on whichexecutor relied could not be given much weight — Deceased was not confinedto bed during last week of her life — She was considered well and capableenough to sign surgical consents and other forms even though her younger sonwas available as her medical power of attorney and could have signed docu-ments if necessary — Deceased was assessed by physical therapist after visit tobank on January 7, 2011 and there was nothing in therapist’s notes to indicatethat deceased did not understand what was going on during assessment or that,at that stage, she lacked capacity to make valid gift — There was nothing intherapist’s report to suggest that, earlier in morning on January 6, 2011, de-ceased was too frail or weak to have left home to do business — Printed signa-ture on transfer form was very similar, if not identical, to known printing ofdeceased — There was evidence that deceased’s energy level was reasonablygood in morning and waned as day progressed and this would explain why let-ters on transfer form were legible and quality of writing was better than on docu-ments signed on January 3 and 4 — Deceased recognized that document wasimportant and this would help explain why she made effort to write clearly.

Estates and trusts –––– Gifts — Types of gifts — Inter vivos gift — Generalprinciples –––– Capacity to make gift — Deceased had two adult sons, and sis-ter, T — Older son was executor of estate — Deceased was diagnosed withstage four esophageal cancer in December 2008, will was prepared in October2009, and deceased passed away on January 9, 2011 — Deceased left tangiblepersonal property to be divided equally between sons, and, failing agreement, tobe divided in shares of substantially equal value and left residue of estate to hersons — Will further provided that, if on deceased’s death, she had no survivingdependants, all remaining property not otherwise disposed of was to go to T —Among estate assets was property owned by deceased registered in T’s name —On January 6, 2011, transfer for property was signed in which deceased wasstated to be transferor and T was stated to be transferee — Transfer stated that

Parmar Estate v. Tiwari 127

consideration for transfer was $250,000, however, no consideration was paid —Transfer form was submitted by T for registration on January 21, 2011 — Exec-utor commenced claim for relief to effect that estate was entitled to declarationthat T held title to property in trust for estate and for order that T transfer pro-perty title to estate — Issue arose as to whether deceased had capacity to makegift — Executor failed to show, on balance of probabilities, that on January 6,2011, deceased lacked capacity to make valid gift of property — Gift of pro-perty had two aspects; actual transfer of property from deceased to T and pay-ment of taxes associated with transfer — It was not type of transaction that wasstrange to deceased — Content of what deceased needed to understand with re-spect to property was less complicated than what she would have had to addressif she had been disposing of all or most of her estate — Relevant capacity wasthat required to make inter vivos gift — Medical and surgical consents and othermedical records from deceased’s hospitalizations provided strong support forconclusion that as of January 4, 2011, deceased’s mind was sufficiently soundthat she had capacity to make valid gift of property — Executor failed to show,on balance of probabilities, that on January 6, 2011, deceased lacked capacity tomake valid gift of property.

Financial institutions –––– Deposits — Joint accounts — Other relation-ships –––– Siblings — Deceased had two adult sons, and sister, T — Older sonwas executor of estate — Deceased was diagnosed with stage four esophagealcancer in December 2008, will was prepared in October 2009, and deceasedpassed away on January 9, 2011 — Deceased left tangible personal property tobe divided equally between sons, and, failing agreement, to be divided in sharesof substantially equal value and left residue of estate to her sons — Will furtherprovided that, if on deceased’s death, she had no surviving dependants, all re-maining property not otherwise disposed of was to go to T — Among estate as-sets was bank account held jointly between deceased and T, opened in 1998 —Until her death, deceased was sole source of deposits to account — When de-ceased died, there was approximately $11,700 in account — Executor com-menced action claiming in part that T held balance in trust for deceased’s estateon resulting trust — T met onus of proof on her to show that, with respect tobalance remaining on bank account, deceased intended to make gift and rebuttedpresumption of resulting trust — Evidence established that deceased directedhow account would be managed — Deceased was intelligent, well-educated wo-man who understood what having joint ownership, or ownership with designatedbeneficiary, meant, and that it meant that asset would transfer to remaining jointowner or designated beneficiary on her death — Deceased deliberately organ-ized most of her financial affairs so that there would be few assets actually pass-ing through her estate when she died — Evidence concerning how deceased or-ganized her affairs supported conclusion that, when account was opened in1998, she intended that upon her death, balance remaining in account wouldpass to T, who would be entitled to it as remaining account holder.


Cases considered by Adair J.:

Bradshaw v. Stenner (2010), 2010 BCSC 1398, 2010 CarswellBC 2652, [2010]B.C.J. No. 1953 (B.C. S.C.) — considered

Chung v. La (2011), 2011 BCSC 1547, 2011 CarswellBC 3002 (B.C. S.C.) —considered

Edmondson v. Payer (2011), 2011 BCSC 118, 2011 CarswellBC 130, [2011]B.C.J. No. 139 (B.C. S.C.) — referred to

Elder Estate v. Bradshaw (2015), 2015 BCSC 1266, 2015 CarswellBC 2069, 12E.T.R. (4th) 73 (B.C. S.C.) — considered

Faryna v. Chorny (1951), 4 W.W.R. (N.S.) 171, [1952] 2 D.L.R. 354, 1951 Car-swellBC 133, [1951] B.C.J. No. 152, [1952] 4 W.W.R. 171 (B.C. C.A.) —referred to

Fuller v. Fuller Estate (2010), 2010 BCCA 421, 2010 CarswellBC 2555, 9B.C.L.R. (5th) 236, 292 B.C.A.C. 182, 493 W.A.C. 182, 62 E.T.R. (3d) 212,[2010] B.C.J. No. 1901, 92 R.F.L. (6th) 34 (B.C. C.A.) — considered

Kooner v. Kooner (1979), 100 D.L.R. (3d) 76, 1979 CarswellBC 786, [1979]B.C.J. No. 84 (B.C. S.C.) — followed

Pecore v. Pecore (2007), 2007 SCC 17, 2007 CarswellOnt 2752, 2007 Carswell-Ont 2753, [2007] S.C.J. No. 17, 361 N.R. 1, 32 E.T.R. (3d) 1, 37 R.F.L.(6th) 237, 279 D.L.R. (4th) 513, 224 O.A.C. 330, [2007] 1 S.C.R. 795(S.C.C.) — followed

Schretlen Estate v. Turney (2010), 2010 BCSC 101, 2010 CarswellBC 167 (B.C.S.C.) — considered

Stewart v. McLean (2010), 2010 BCSC 64, 2010 CarswellBC 110, 54 E.T.R.(3d) 59, [2010] B.C.J. No. 77 (B.C. S.C.) — considered

Turner v. Turner (2010), 2010 BCSC 49, 2010 CarswellBC 87, 54 E.T.R. (3d)80 (B.C. S.C.) — followed

ACTION by estate executor for relief including declaration that deceased’s sis-ter held title to property and bank account balance in trust for estate.

Timothy J. Huntsman, for PlaintiffJohn R. Jordan, P. Pelzer, for Defendant

Adair J.:

Introduction1 On January 9, 2011, Dr. Surinder Parmar, who was born in October

1948, died of complications from cancer. In life, she was a very accomp-lished woman. She was a medical doctor and practiced most of her life inthe Chicago area, specializing in nuclear medicine. Dr. Parmar had twosons. The elder, the plaintiff Paminder Parmar, is an engineer, and is the

Parmar Estate v. Tiwari Adair J. 129

executor of his mother’s estate. The younger, Paramjit Parmar, is a medi-cal doctor practicing in Colorado.

2 I will refer to Dr. Surinder Parmar as “Dr. Parmar.” I will refer to herson Paminder Parmar as “Mr. Parmar,” and her son Paramjit Parmar as“Dr. P.J. Parmar.”

3 The defendant, Dhavinder Tiwari (who was 62 as of the trial), is theyounger sister of Dr. Parmar. She is a retired school teacher and lives inNanaimo.

4 This action primarily involves property on Comox Road in Nanaimo(“Comox”) that Dr. Parmar owned. Comox is now registered in the nameof Ms. Tiwari. A few days before Dr. Parmar’s death, a Form A transfer(the “Form A Transfer”) for Comox was signed, in which Dr. Parmarwas stated to be the transferor and Ms. Tiwari was stated to be the trans-feree. Although the Form A Transfer states the consideration as$250,000, it is agreed that no consideration was paid. The Form A Trans-fer was not submitted for registration until after Dr. Parmar’s death.

5 The plaintiff claims relief in respect of Comox on a variety of alterna-tive grounds. Generally, the plaintiff asserts that Dr. Parmar’s estate isentitled to a declaration that Ms. Tiwari holds title to Comox in trust forthe estate, and to an order that Ms. Tiwari transfer title to Comox to theestate.

6 In response, Ms. Tiwari says that before Dr. Parmar died, she in-tended to make, and in fact made, a gift of Comox to her. Ms. Tiwarisays that there is no basis to set the gift aside. She says that the plaintiff’sclaims respecting Comox must therefore be dismissed.

7 The action also involves a bank account (the “RBC Account”) at aRoyal Bank branch in Nanaimo. The RBC Account was a joint accountin the names of Dr. Parmar and Ms. Tiwari. When Dr. Parmar died, therewas about $11,700 in the RBC Account. The plaintiff alleges that Ms.Tiwari held this balance in trust for Dr. Parmar’s estate, on a resultingtrust. Ms. Tiwari asserts that she was entitled to the balance in the RBCAccount, as the surviving joint account holder.

A note on the Document Agreement8 Certain documents were admitted into evidence pursuant to a docu-

ment agreement. These documents consisted of clinical and hospitalrecords from the University of Chicago Medical Centre, records fromCNS Home Health Hospice (“CNS”) and records from Greatland Home


Health Services (“Greatland”). They were marked collectively as Ex. 27.I will refer to this collection as the “Clinical Records.” The partiesagreed that the documents in this collection were authentic and admissi-ble in evidence as business records. In addition, the results of Dr.Parmar’s blood tests (Ex. 9), an invoice from the University of ChicagoMedical Centre (Ex. 10), prescription records (Ex. 11) and the prescrip-tions written and marked as Ex. 12 were admitted pursuant to the docu-ment agreement and as proof of the facts recorded. Other clinical, hospi-tal and medical records were not covered by the document agreement.

Background

(a) The Sisters9 Both Dr. Parmar and Ms. Tiwari were born and grew up in India. Ms.

Tiwari immigrated to Canada in 1971, when she was 19, and settled onVancouver Island. She and Dr. Parmar had a brother and other extendedfamily who were then living in B.C.

10 Dr. Parmar qualified as a medical doctor in India, and she marriedthere. She came to Canada, alone, in 1973, with her brother as her spon-sor. She was then pregnant with Mr. Parmar. Both Dr. Parmar and Ms.Tiwari lived with their uncle and his family at their home in Victoria.Mr. Parmar was born in Victoria in 1973. Dr. Parmar worked for a timeat Victoria General Hospital, and then moved with Mr. Parmar to NewBrunswick to continue her medical practice. Dr. P.J. Parmar was bornthere probably around 1975. According to Ms. Tiwari, after Dr. Parmarmoved from B.C., they kept in regular touch with one another by phone.

11 Dr. Parmar’s marriage was not a happy one. It ended in divorce whenher children were still very young. After the divorce, Mr. Parmar livedmostly with his mother, and Dr. P.J. Parmar lived mostly with his father,although he spent extended blocks of time with his mother until he wasabout 12.

(b) Dr. Parmar establishes her medical practice in the Chicago area12 Sometime probably in the early to mid-1980s, Dr. Parmar established

her medical practice in the Chicago area. Initially, she practiced as apathologist, but eventually moved into nuclear medicine, where she spentthe balance of her career. She carried on what, by all accounts, was abusy and financially successful practice. She owned a home in DownersGrove, a Chicago suburb (I will refer to Dr. Parmar’s home as “DownersGrove”), and she was also able to accumulate significant assets. In B.C.,


in addition to Comox, Dr. Parmar owned another property in Nanaimo(“Fillinger”) and property in Burnaby (“Sunset”). At her death, Dr.Parmar’s net worth was in the millions of dollars (U.S.).

13 In 1998, Dr. Parmar and Ms. Tiwari opened the RBC Account. Dr.Parmar made all of the deposits to the RBC Account until it was closedby Ms. Tiwari after Dr. Parmar passed away.

(c) December 2008 - Dr. Parmar’s cancer diagnosis14 Dr. Parmar was diagnosed with stage 4 cancer of the esophagus in

December 2008. She communicated the very sad news to her sons, Ms.Tiwari and her brother in an e-mail message. It was a shock to everyone.

15 As of December 2008, Mr. Parmar was living in Sacramento, Califor-nia. He had moved there from Illinois a few years before. Otherwise, hehad lived relatively close to his mother all of his adult life. Dr. P.J.Parmar was doing a medical residency in Colorado. Mr. Parmar decidedthen and there that he was going to move back to Illinois to be with hismother. He wrapped things up in California and moved back to Illinois in2009.

16 As Ms. Tiwari recalled, after she received Dr. Parmar’s e-mail, shephoned her sister. She described the phone call as a “hard call.” Ms.Tiwari asked about treatments, and Dr. Parmar explained she was receiv-ing chemotherapy and radiation, and would then have surgery. Ms.Tiwari asked her sister if there was anything she could do, and Dr.Parmar asked her to come and be with her. Accordingly, in January2009, Ms. Tiwari took a leave of absence from her job as a teacher inNanaimo and went to Chicago to be with her sister. As Ms. Tiwari recal-led, shortly after her arrival at Downers Grove, Mr. Parmar arrived.

17 As Ms. Tiwari recalled, she accompanied Dr. Parmar when she wentfor treatments and sat with her during visits to the doctor. She recalledthat both of Dr. Parmar’s sons also helped out a great deal. When Dr.Parmar finished chemotherapy later in January 2009, Ms. Tiwari re-turned briefly to Nanaimo. Ms. Tiwari then returned to Chicago in earlyFebruary. Dr. Parmar had major surgery, and Ms. Tiwari remained withher at Downers Grove until Dr. Parmar recovered. Ms. Tiwari returnedhome to Nanaimo in April. However, as Ms. Tiwari recalled, she and Dr.Parmar talked on the phone almost every day.

18 Dr. Parmar came to Nanaimo for a visit in May 2009 and to celebratethe wedding of Ms. Tiwari’s daughter (and Dr. Parmar’s niece). Dr.Parmar stayed with Ms. Tiwari for about a month before returning home.


19 According to Ms. Tiwari, in the summer of 2009, Dr. Parmar told herthat, despite treatment and surgery, she was not 100% cured. Ms. Tiwaridecided to take early retirement from her teaching position, so that shewould be free to spend time with Dr. Parmar.

20 In September 2009, Dr. Parmar saw a lawyer in Chicago concerningthe preparation of a new Will. The lawyer’s notes indicate that Dr.Parmar wanted to “keep things simple.” The lawyer’s notes do not shedany light on Dr. Parmar’s views concerning the RBC Account becauseno details at all are disclosed concerning Dr. Parmar’s bank accounts. Inthe resulting Will, stated to be signed by Dr. Parmar on October 1, 2009,she appointed Mr. Parmar as her executor, with Dr. P.J. Parmar as thealternate. According to the Will, Dr. Parmar left any automobile that sheowned at her death to Mr. Parmar, and gave her remaining tangible per-sonal property to her sons, to be divided as they should agree, and failingagreement, divided in shares of substantially equal value. Dr. Parmarthen left the residue of her estate to her sons, equally. The Will providedfurther that, if, on Dr. Parmar’s death, she left no surviving descendants,all remaining property not otherwise disposed of was to go to Ms.Tiwari.

21 Although Dr. Parmar took the prudent step of updating her Will in thefall of 2009, the evidence shows that, by that time, Dr. Parmar had al-ready arranged for the disposition on her death of a very substantial por-tion of her assets (particularly financial assets) outside of her estate,through (for example) use of a trust (in the case of her home in DownersGrove) and specific beneficiary designations. According to Dr. P.J.Parmar (whose evidence was unchallenged in this respect), this was de-liberate estate planning on Dr. Parmar’s part. According to Mr. Parmar,this approach created problems for him as executor trying to administerDr. Parmar’s estate, since there were no assets or funds available to payfor the administration.

22 In October 2009, Dr. Parmar also signed two power of attorney docu-ments, appointing Ms. Tiwari as her attorney. One is stated to be an “En-during Power of Attorney (British Columbia - for the appointment of oneattorney),” and the second is stated to be an “Illinois Statutory ShortForm Power of Attorney for Property.”

23 Earlier in 2009, Mr. Parmar had announced he planned to be marriedin the fall. This was going to be a very happy event. According to Ms.Tiwari, Dr. Parmar asked her to help with the planning and do someshopping in Vancouver for special items and outfits for the wedding,


which Ms. Tiwari did. Ms. Tiwari then went to Illinois in October 2009to be with her sister. However, Dr. Parmar’s cancer had returned and shewas undergoing more chemotherapy.

24 Mr. Parmar married in October 2009. He and his wife went to Africafor their honeymoon. His wife was at university in Iowa, and when Ms.Tiwari and others were at Dr. Parmar’s home and able to look after her,Mr. Parmar spent time with his wife in Iowa. As Mr. Parmar recalled, hismother was in relatively good health in the early part of 2010.

25 Ms. Tiwari remained at Downers Grove with Dr. Parmar until thesummer of 2010. Dr. Parmar came to Nanaimo for a visit that summer,and to finalize arrangements for the sales of Sunset and Fillinger. Both ofthose sales completed. An accountant, Mr. Hough, assisted in dealingwith the tax matters associated with Dr. Parmar’s disposition of theseproperties. A lawyer, Mr. Brown, handled the legal aspects of the con-veyances. Both Mr. Hough and Mr. Brown were located in Nanaimo.

26 Comox had been listed for sale for some time, and eventually an offermaterialized that Dr. Parmar accepted. However, as of the completion ofthe sales of Fillinger and Sunset, the offer for Comox had fallen through.

27 According to Ms. Tiwari, Dr. Parmar was discouraged when the saleof Comox did not complete, because she had wanted to dispose of allthree properties. As Ms. Tiwari recalled, Dr. Parmar talked to her on anumber of occasions about what the options might be for dealing withComox. According to Ms. Tiwari, Dr. Parmar told her that she had askedboth of her sons whether either of them wanted Comox, but neither wasinterested.

28 After the summer of 2010, Dr. Parmar and Ms. Tiwari returned toDowners Grove together. Mr. Parmar was living at Downers Grove, aswas Ms. Tiwari’s son (who was studying at one of the Chicago area uni-versities). Ms. Tiwari remained in Illinois, living with her sister at Dr.Parmar’s home in Downers Grove, and sleeping in the same bedroom,until Dr. Parmar died on January 9, 2011.

29 According to Mr. Parmar, when his mother returned to DownersGrove from Nanaimo, spots were found on her liver during a scan. Thecancer had metastasized. Dr. Parmar decided that she did not want fur-ther treatment. Dr. Parmar, Mr. Parmar and his wife went on a cruisetogether in November, and things seemed more positive. Mr. Parmar andhis wife were expecting their first child, which was a very happy event.


(d) In Mid-December 2010, Dr. Parmar is admitted to hospice care30 However, in early December 2010, Dr. Parmar had an episode of very

severe pain. Mr. Parmar took her to the emergency department at one ofthe nearby hospitals. The news was grim: Dr. Parmar was terminal. Inmid-December, she was recommended for and admitted to home hospicecare, which during December, was provided by CNS. In due course,medications were prescribed for Dr. Parmar to assist in managing herpain, to help her sleep and to address her nausea. The medications in-cluded morphine and a Fentanyl patch. Morphine was being administeredat doses of between 0.5 mg and 2.5 mg a few times a day, and theFentanyl patch dose was also a low dose. Dr. Parmar was also takingpromethazine for nausea, ibuprophen for pain and was on oxygen to as-sist her breathing.

31 According to Mr. Parmar, after December 11, 2010, his mother’s con-dition deteriorated noticeably. He testified that, previously, she had donepuzzles (such as Sudoku) regularly and enjoyed activities such as knit-ting. However, according to Mr. Parmar, after December 11, she nolonger did Sudoku; she did not read the newspaper; she would gothrough the motions of knitting, when in fact she was not; and she re-sponded strangely to questions. As Mr. Parmar recalled, she seemed tobe asleep all or most of the time. He recalled a frightening incident onDecember 29, when he said that Dr. Parmar, who was frequently nause-ous, tried to open the car door when they were travelling on the freeway.

32 Ms. Tiwari’s recollections are quite different from those of Mr.Parmar. As she recalled, although Dr. Parmar tired very easily, she con-tinued with activities such as Sudoku and knitting. Dr. Parmar also hadregular visitors (in addition to the hospice care providers), with whomshe interacted directly (rather than through Ms. Tiwari). Dr. Parmarwould voice her preferences for music and certain prayers. She was ableto dress herself with some help from Ms. Tiwari. As Ms. Tiwari recalled,Dr. Parmar would accept help when she needed it, but wanted to dothings on her own. When Dr. P.J. Parmar suggested it, they would go fora drive. Even in the last week of her life, Dr. Parmar got out of bed everyday, changed her clothes and saw visitors. According to Ms. Tiwari, hersister was able to communicate with her and with friends who visited,and stay on topic, right up to the end of her life.

33 Dr. P.J. Parmar’s observations and recollections were also considera-bly more positive than those of his brother, at least until January 7, 2011.He, too, recalled that his mother often had visitors to the house. He recal-


led that, in the last week of her life, he and his mother discussed herassets and finances, and he made a detailed list of what she was tellinghim. When Dr. Parmar’s assets and affairs were examined after herdeath, what she communicated to Dr. P.J. Parmar turned out to be rea-sonably reliable and accurate. As Dr. P.J. Parmar recalled, the two ofthem discussed all aspects of her diagnosis, prognosis, treatment, andalso her breathing and nutrition. As he recalled, Dr. Parmar was able toexpress herself clearly and could stay on topic. He observed that, mostdays, she continued to try and complete Sudoku puzzles. He explainedthat they tried to get out of the house most days, just to keep his motherengaged.

34 The hospice care notes generally indicate that there were days andperiods when Dr. Parmar was alert and engaged, and other periods whenshe was less so, or much less so. However, in my opinion, the ClinicalRecords do not support the very gloomy picture described by Mr.Parmar. Rather, they are more consistent with the evidence of Ms. Tiwariand Dr. P.J. Parmar.

35 As Ms. Tiwari recalled, despite Dr. Parmar’s failing health, Dr.Parmar continued to discuss options concerning Comox with her. Ac-cording to Ms. Tiwari, Dr. Parmar suggested transferring Comox to Ms.Tiwari. In response, Ms. Tiwari told Dr. Parmar that she did not want topurchase Comox and did not have the money to buy it in any event. AsMs. Tiwari recalled, Dr. Parmar then told her that it would be a gift, andMs. Tiwari would not have to pay anything for Comox. However, ac-cording to Ms. Tiwari, she then reminded Dr. Parmar that there would betax consequences to any disposition, as there had been when Sunset andFillinger were sold. In response, Dr. Parmar said that she would take careof the taxes.

36 Mr. Parmar left Downers Grove on December 24, 2010, and returnedon December 28.

37 On December 26, 2010, Dr. Parmar made an audiobook for hergrandchildren, in which she read a story, “Guess how much I love you.”Dr. Parmar printed her name in block capitals on the cover page.

(e) The last ten days38 By late December 2010, ensuring that Dr. Parmar had proper and ade-

quate nutrition and fluids was a serious problem, since she was fre-quently nauseated and vomiting, and had trouble swallowing. On De-cember 29, 2010, Mr. Parmar, Dr. Parmar and Ms. Tiwari went to the


University of Chicago Medical Centre to complete some preliminarysteps in preparation for a procedure (placement of a jejunostomy tube, or“J-tube,” to facilitate Dr. Parmar being fed) planned for Dr. Parmar thefollowing day. At 9:15 a.m., Dr. Parmar signed a “Consent to Diagnosticor Therapeutic Procedure” form (the “Medical Consent”), consenting tothe procedure. The Medical Consent was co-signed by the physician,under a “Statement of Physician” that read in part:

I certify that at the time the above consent was signed, the personwho signed was capable of understanding the nature of the patient’sphysical condition and of the proposed diagnostic or therapeutic pro-cedure; ...

39 Dr. Parmar, Ms. Tiwari and Mr. Parmar returned to the hospital themorning of December 30, 2010, in anticipation of the procedure beingdone that day. Dr. P.J. Parmar was also present at the hospital on Decem-ber 30.

40 The Clinical Records disclose that Dr. Parmar arrived at the hospitalaround 9:00 a.m. Her mental status is described as “alert, oriented,NAD” (which I take to be an abbreviation for “no apparent distress”).However, despite multiple attempts, the J-tube could not be placed thatday. The Clinical Records disclose that Dr. Parmar had some difficultylying flat because of a “recurrent left malignant pleural effusion.”Around 2:40 p.m., Dr. Parmar signed a “Consent to Medical/SurgicalProcedures” form (a “Surgical Consent”) consenting to a thoracentesis(i.e., a procedure to remove excess fluids in the space between the lungsand chest wall). The hospital procedure team removed about 1.6 litres offluid. Although Dr. Parmar’s respiratory status improved after that proce-dure, the J-tube still could not be placed. Dr. Parmar was then admittedto the hospital medicine service for overnight observation, as well as sur-gical consultation. She remained in hospital overnight. Dr. P.J. Parmartestified (and I find) that he remained in hospital with her, and slept onthe floor in her hospital room.

41 The Surgical Consent is different from the Medical Consent. For ex-ample, the Surgical Consent does not have the “Statement of Physician”section. However, at the bottom of the Surgical Consent, after the placefor the signature of the patient (or the patient’s representative), and thedate and time, the form states:

As the Physician or LIP obtaining this consent, I have explained theanticipated benefits, relevant risks and alternatives with this patientand/or representative.


There is then a place for the physician to sign, print his or her name, datethe form (including the time of day) and state the physician’s pagernumber.

42 The Surgical Consent signed by Dr. Parmar at 2:40 p.m. on Decem-ber 30, 2010 was signed and dated by the physician at the same time.

43 According to Ms. Tiwari, at some point on December 30, she, Dr.Parmar, Mr. Parmar and Dr. P.J. Parmar were all together in a hospitalwaiting area. As she recalled, Dr. Parmar asked Mr. Parmar whether hewas interested in Comox. However, because Dr. Parmar’s voice wasquite low, Dr. P.J. Parmar then repeated what she had said. According toMs. Tiwari, Mr. Parmar said no. Then he was asked whether it was okayif Dr. Parmar gave Comox to Ms. Tiwari (using the name “Masi” toidentify Ms. Tiwari), and Mr. Parmar said, “sure.” As Ms. Tiwari recal-led, it was then that she agreed to accept Comox as a gift from Dr.Parmar.

44 Dr. P.J. Parmar also recalled a discussion about Comox, in the hospi-tal pre-op waiting area, early in the day on December 30, before any ofDr. Parmar’s medical procedures. The discussion involved himself, Mr.Parmar, Dr. Parmar and Ms. Tiwari. As Dr. P.J. Parmar recalled, Mr.Parmar’s wife was also present. Dr. P.J. Parmar explained that each timeDr. Parmar would go into hospital for a significant procedure, she would“get into the mode” of trying to finalize things, just in case she did notcome out of the procedure. He also recalled that the subject of Comox,and whether either he or Mr. Parmar had any interest in the property, hadcome up on a number of occasions before this. This time, as Dr. P.J.Parmar recalled, Dr. Parmar asked him whether he wanted Comox andhe said that he did not. Dr. P.J. Parmar recalled that she asked Mr.Parmar the same question, but he did not hear any response from Mr.Parmar.

45 Mr. Parmar also recalled a discussion about Comox on December 30in the hospital waiting area. As he recalled, both he and Ms. Tiwari werein the waiting area about midday. His wife came and Dr. P.J. Parmararrived shortly afterwards. However, as Mr. Parmar recalled, Dr. Parmarwas not present. As Mr. Parmar recalled, at one point, he and his wife gotup to get something to drink, and they started walking toward a vendingmachine. According to Mr. Parmar, at that point, as he was walkingaway, Ms. Tiwari called to him and “mumbled” something aboutComox, along the lines of asking him if he had any plans. As he recalled,he looked at Dr. P.J. Parmar, who said something about Moe Sihota (who


Mr. Parmar described as a distant relative). Mr. Parmar responded to theeffect of “okay, whatever.” According to Mr. Parmar, he returned to thewaiting area after getting a drink, and no one mentioned Comox for therest of the afternoon.

46 According to Mr. Parmar, he never spoke to Dr. Parmar about hermaking a gift of Comox to Ms. Tiwari or to anyone, although she haddiscussed selling the B.C. properties with him.

47 Mr. Parmar did not stay at the hospital the night of December 30.48 The Clinical Records disclose that, on December 31, after the surgery

consultation, it was recommended that Dr. Parmar have some further sur-gery (including placement of a pleural catheter) on January 3, 2011. Therecords disclose further that Dr. Parmar and “her son” (who I concludemust be Dr. P.J. Parmar) were agreeable to this plan, and that they re-quested that they be dismissed from hospital over the holiday weekend,to return for surgery on January 3 (a Monday).

49 Dr. Parmar signed a Surgical Consent on December 31. Only p. 2(with Dr. Parmar’s and the physician’s signatures) is in evidence; p. 1,which describes the procedure(s), is missing. However, I conclude thatthis Consent most likely relates to the procedures that were to be done onJanuary 3, 2011.

50 On January 2, 2011, before he left Downers Grove for several days,Mr. Parmar arranged for a priest to come to the house, and a prayer wasdone. As he recalled, Dr. Parmar fell asleep while the priest was there.According to Mr. Parmar, he observed that Dr. Parmar was not doingSudoku and was making strange comments. Mr. Parmar and his wife leftDowners Grove sometime in the afternoon on January 2, 2011. He didnot return until January 7.

51 Dr. Parmar and Dr. P.J. Parmar returned to the University of ChicagoMedical Centre on January 3, 2011 for the procedures that had been rec-ommended on December 31. Ms. Tiwari was unsure whether she accom-panied them. Although her recollection was that she went with Dr.Parmar every time Dr. Parmar went to hospital, she appeared to have noreal recollection of this particular hospitalization, even when documentsrelating to it were put to her.

52 Mid-morning on January 3, 2011, Dr. Parmar signed a Surgical Con-sent consenting to the placement of a left pleurex catheter. The form isco-signed by a physician.


53 The operative report for January 3 describes the procedures per-formed, including the placement of a “Dobbhoff” tube (being placed fornutritional purposes). The surgery was completed uneventfully.

54 Dr. Parmar remained in hospital overnight. Dr. P.J. Parmar slept inher room. Dr. Parmar was discharged home on January 4. According tothe discharge summary, as a result of a consultation with a specialist, alaparoscopic J-tube placement for Dr. Parmar “for feeding purposes” wasscheduled for Friday, January 7, 2011. The medical records include aSurgical Consent dated January 4, 2011 at 8:30 a.m. whereby Dr. Parmarconsents to a “laparoscopic, possible open, jejunostomy tube placement.”On the patient’s signature line on p. 2, Dr. Parmar’s signature appearstwice. The Consent is co-signed by a physician. Dr. Parmar also signedeach page of a 3-page form titled “University of Chicago Medical CentreAfter Visit Summary” form. The form is dated January 4, 2011 at 17:45,and it notes the surgery planned for January 7. A “Social Work Assess-ment Note” indicates that Dr. Parmar and Dr. P.J. Parmar discussed achange in the hospice care provider (someone to replace CNS) with asocial worker at the Hospital on January 4.

55 The discharge summary also records at about 6:30 p.m. on January 4: [Patient] given discharge instructions. [Patient] verbalized under-standing. No distress noted. Family at bedside. [Patient] transferredoff unit per wheelchair with transportn staff.

56 According to Ms. Tiwari, following the discussion about Comox withDr. Parmar and the others at the hospital on December 30, 2010, and heragreement to accept Comox (along with Dr. Parmar’s payment of anytaxes) as a gift from Dr. Parmar, she began (at Dr. Parmar’s request) tomake inquiries about how this could best be done. On December 30, shecontacted Mr. Hough by e-mail. In response, Mr. Hough communicated asuggestion from Mr. Brown, whereby Ms. Tiwari and Dr. Parmar wouldbecome joint tenants of Comox. According to Ms. Tiwari, when shecommunicated to Dr. Parmar what Mr. Brown and Mr. Hough were sug-gesting, Dr. Parmar’s reaction was that what they were proposing wastoo complicated and a simpler solution needed to be found. Dr. Parmarwanted Ms. Tiwari to contact Mr. Moe Sihota, a B.C. lawyer whose wifewas Dr. Parmar and Ms. Tiwari’s cousin, for some advice.

57 On January 4, 2011, Ms. Tiwari sent an e-mail to Mr. Brown with acopy to Mr. Hough. Her message reads in part:

I like the option that John [Hough] suggested that:


I purchase half the interest in the property thereby becoming a jointtenant so when something happens to my sister then the property au-tomatically transfers to me.

I would like to persue [sic] this option.

Ms. Tiwari acknowledged on cross-examination that her message men-tioned nothing about Dr. Parmar giving her Comox as a gift.

58 Mr. Brown responded: Dhavinder, I will need written confirmation from Surinder and willhave to send documents for her to sign in front of a lawyer in theU.S. She will need to be able to show she is competent to have thelawyer there witness her signature.

59 According to Ms. Tiwari, it was around this time that she got Mr.Sihota more involved. According to Ms. Tiwari, Mr. Sihota initially sug-gested a method essentially structured as a sale, but where Ms. Tiwariwould give a cheque to Dr. Parmar and Dr. Parmar would then give acheque back to Ms. Tiwari. However, according to Ms. Tiwari, Dr.Parmar considered this method was not sufficiently simple to be accept-able. In the end, according to Ms. Tiwari, it was based on Mr. Sihota’sadvice that Dr. Parmar decided simply to transfer Comox to Ms. Tiwari.Mr. Sihota prepared the Form A Transfer for that purpose and sent it toMs. Tiwari by e-mail on January 5, 2011. As Ms. Tiwari recalled, shehad a copy of the Form A Transfer printed off and then gave it to Dr.Parmar. The next time she saw the document was on January 6, 2011,when she, Dr. Parmar and Dr. P.J. Parmar were at the bank and Dr.Parmar took out the document to sign before a notary.

60 Ms. Tiwari acknowledged that, when he sent the Form A Transfer,Mr. Sihota told her to have Mr. Parmar and Dr. P.J. Parmar agree inwriting to the transfer of Comox to her, and that she did not follow hisadvice. However, Ms. Tiwari explained she did not do this because bothof her nephews had been present on December 30 when Dr. Parmarasked whether it was alright for her to give Comox to her, and they bothsaid it was. At trial, Ms. Tiwari repeated a number of times that she wasnot asking for Comox to be transferred to her and did not want it.

61 In the morning on January 5, 2011, Dr. Parmar was assessed at homeby a hospice care nurse, Ms. Emmah Tande. Ms. Tande was employedby the proposed new hospice care provider, Greatland. The assessmentbegan probably around 9:45 a.m. and finished shortly after 11:00 a.m.


62 Ms. Tande completed a detailed 8-page form, with numerous head-ings, sub-headings and topic areas, and, after the assessment, she alsocompleted a much shorter nursing note.

63 In the form, Ms. Tande noted under “Homebound Reason(s),” “Diffi-cult and taxing effort to leave home; Dependent with ADLs, Requiresassistive device(s), Impaired ability/safety with driving.” She notedunder “Abuse/Neglect/Exploitation,” “No signs and symptoms of abuse,neglect and/or exploitation.” Under the heading “Physical/Neurological”and the topic “Cognitive Functioning,” she noted “Alert/oriented, able tofocus and shift attention, comprehends and recalls task directions inde-pendently.” Dr. Parmar’s general appearance was described as “neat ap-pearance/appropriately groomed,” and her behaviour and speech wereboth described as “appropriate.” Under the heading “Physical/Pain Eval-uation,” and in response to the question “Has this patient had a formalPain Assessment using a standardized pain assessment tool (appropriateto the patient’s ability to communicate the severity of the pain,” Ms.Tande noted “Yes, and it does not indicate severe pain.” She noted therating for Dr. Parmar’s current pain, on a scale of 0-10, at 5. Under theheading “Physical/Hematologic/Lymphatic,” Ms. Tande noted “Fatigueonset: New,” “Fatigue frequency: Constant,” and “Fatigue site of weak-ness: generalized.” Under the heading “Functional Status,” Ms. Tandenoted (among other things) that Dr. Parmar needed someone to assist herin putting on her clothing and in maintaining “toileting hygiene and/oradjust clothing.” Under the topic “Ability to use telephone,” Ms. Tandenoted “Able to dial numbers and answer calls appropriately as desired.”

64 In the nursing note, Ms. Tande noted Dr. Parmar’s discharge fromhospital on January 4, 2011, and recorded (among other things) that Dr.Parmar “was taken to the hospital due to poor appetite, increased weak-ness, due to inadequate nutritional intake, a nasogastric tube was in-serted.” She noted that Dr. Parmar reported pain level was 5 (on a scaleof 10) on movement and that Dr. Parmar did not want pain medication“at this time.” She also recorded that Dr. Parmar “is weak and frail, hercolor is dusky, her mobility is limited due to weakness.” Ms. Tande alsonoted that “Pt has a doctors appt today, blood work will be done at thedoctors office.”

65 During Ms. Tande’s visit on January 5, Dr. Parmar signed an “Ad-mission Service Agreement Home Health” form (the “Home Health Ad-mission Form”). The Home Health Admission Form contains termswhereby (among other things): the patient consents to Greatland provid-


ing care and treatment (as prescribed by the patient’s physician) to thepatient in her home; the patient consents to the release of information forthe purposes of treatment, payment and health care operations; the pa-tient certifies her liability for payment for the services; and the patientacknowledges receipt of information on topics such as advance directivesand basic home safety.

66 There are two places for the “admitting clinician” (in this case, mostprobably Ms. Tande) and the patient to sign the Home Health AdmissionForm. There is no dispute that Dr. Parmar signed the document. Her firstsignature is similar to her signatures on documents signed at the Univer-sity of Chicago Medical Centre on January 3 and 4, 2011, although sheappears to have written her last name twice. The signature is in cursivewriting, but the writing is quite small and the letters are indistinct. Hersecond signature (under the heading “Acknowledgement of Receipt ofNotice of Privacy Practices”) is altogether different. The letters areprinted in what appears to be block capitals, the printing is very poor andnot very legible, and the letter “P” in Dr. Parmar’s surname is repeatedmultiple times. The plaintiff’s expert, Dr. Lonn Myronuk, referred to therepetition of the “P” as a perseverative error, being a type of action thatis repeated beyond what is appropriate and is made when the individualcannot monitor responses. There is a space in this section of the Formthat begins “Patient unable to sign because.” However, that section isblank.

67 Another copy of the Home Health Admission Form, with a secondpage, was put to Dr. P.J. Parmar during cross-examination. Dr. P.J.Parmar signed the second page. He explained that the first page wassigned by Dr. Parmar at the end of Ms. Tande’s assessment. He rejectedthe proposition put to him that the first page had been signed by hismother at the beginning of Ms. Tande’s assessment. He explained furtherthat he signed the second page because his mother was falling asleep.

68 I accept Dr. P.J. Parmar’s evidence concerning when the HomeHealth Admission Form was signed by Dr. Parmar and concerning thecircumstances in which he signed the second page. Based on the contentsof the Form, the patient is being asked to consent and agree to the provi-sion of services in the future. The purpose of Ms. Tande’s visit was notto provide services, but to make an assessment concerning what servicesDr. Parmar might need and would be of benefit to her, given her overallcircumstances. The assessment process is not analogous to the consentrequired for surgery, for example.


69 As Dr. P.J. Parmar recalled, after Ms. Tande left, some of Dr.Parmar’s friends came over to the house to visit. Then, in the afternoon,he took Dr. Parmar out for an appointment with her family physician, Dr.Sharif, which included a visit to the lab for some blood work. This outingwas uneventful.

70 The results of the lab tests were admitted into evidence as part of Ex.9. Both the plaintiff’s expert, Dr. Myronuk, and the defendant’s expert,Dr. Aindrias O’Breasail, provided some explanation and interpretation ofthe results. I will discuss the experts’ opinions more fully below.

71 On January 5, 2011, Dr. Sharif wrote a prescription for Dr. Parmarfor the drug lactulose, and provided that the prescription could be refilledtwice. Both Dr. Myronuk and Dr. O’Breasail agree that lactulose is atreatment to control symptoms of hepatic encephalopathy (“HE”), a con-dition that Dr. Myronuk described as delirium caused by liver failure.However, Dr. O’Breasail explained that lactulose is prescribed to removenitrogen contents from the human gut, and its primary aim is to lowerammonia levels. He explained that raised ammonia levels can be associ-ated with HE. However, he explained that it does not follow that, if anindividual has raised ammonia levels, the individual will be sufferingfrom HE.

72 There was no opinion evidence, including from either Dr. Myronukor Dr. O’Breasail, that Dr. Parmar was suffering from HE, and no evi-dence that a physician ever made such a diagnosis for her. Dr. O’Breasailexplained that HE is a clinical diagnosis; it is not a diagnosis that is madebased on laboratory test results.

73 Dr. P.J. Parmar recalled sitting with his mother in her bedroom laterin the day on January 5. As he recalled, Dr. Parmar mentioned to himthat she had a paper that needed to be signed to give Comox to Ms.Tiwari, and they should go to her bank the next day to have it signedbefore a notary. He could not recall whether or not Ms. Tiwari was withthem when they had this discussion. Ms. Tiwari’s evidence wasinconclusive.

74 Dr. P.J. Parmar also recalled discussing with Dr. Parmar the tax im-plications of transferring Comox to Ms. Tiwari. As he recalled, aroundJanuary 4 or 5 (he could not recall which day), he was present in Dr.Parmar’s bedroom when she signed some blank cheques. As he recalled,Dr. Parmar told him that the cheques were to be used for paying the taxesin connection with the transfer of Comox to Ms. Tiwari. According toDr. P.J. Parmar, the reason she signed more than one cheque was because


sometimes cheques needed to go to different places. As he recalled, Dr.Parmar left the cheques either on her bedside table or in her purse. Thereis no dispute that, after Dr. Parmar died, these cheques were in fact lo-cated in her purse.

75 A total of four cheques, signed by Dr. Parmar, and numbered 3217,3218, 3219, 3220, are in evidence. Dr. Parmar’s cheque record book isalso in evidence. As I note below, after Dr. Parmar died, Dr. P.J. Parmarfilled in cheque no. 3218, and sent it to Ms. Tiwari. With respect to theremaining three cheques, only no. 3217 is dated (“1/6/2011”), and noneof the cheques have any information noted in the “For” section, indicat-ing the purpose of the cheque. None of the four cheques is recorded inany way in Dr. Parmar’s cheque record book.

76 According to Ms. Tiwari, when she agreed to accept Comox from Dr.Parmar as a gift, Dr. Parmar told her that there would be signed blankcheques in her purse to cover taxes and expenses. Ms. Tiwari repeatedthat, without such a commitment from Dr. Parmar, she would never haveaccepted her sister’s gift because she did not want Comox. She could notsay whether she was in fact present when Dr. Parmar signed the fourblank cheques, and she was also unable to say when Dr. Parmar signedthe cheques. There was some inconsistency between her evidence at trial,and evidence she gave at her examination for discovery concerning thecheques. However, Ms. Tiwari admitted that, while Dr. Parmar wasalive, she never received any cheque or cheques from her, and Dr.Parmar never transferred any money to her, to pay taxes and expensesassociated with the transfer to her of Comox.

77 In the morning on January 6, 2011, Dr. P.J. Parmar, Dr. Parmar andMs. Tiwari left Downers Grove. Dr. P.J. Parmar was driving Dr.Parmar’s car, Dr. Parmar was in the front passenger seat and Ms. Tiwariwas sitting in the back passenger seat. Dr. P.J. Parmar had put Dr.Parmar’s wheelchair in the trunk of the car and brought along a smallportable oxygen tank. As Dr. P.J. Parmar recalled, he drove first to Dr.Parmar’s regular bank branch, where she had been doing all of her bank-ing since the 1980s. According to Dr. P.J. Parmar, they arrived at thebank about 9:00 a.m., when it opened. He wheeled Dr. Parmar into thebranch, and then asked to see a notary. The notary had a desk and Dr.P.J. Parmar moved a chair to make room for Dr. Parmar’s wheelchair. Heand Ms. Tiwari then also sat down at the desk. As Dr. P.J. Parmar recal-led, the notary asked Dr. Parmar for some identification and asked her toproduce what she wanted to sign that day, which was the Form A Trans-


fer. As Dr. P.J. Parmar recalled, Dr. Parmar got out her identification andwas able to respond appropriately to the notary’s questions. According toDr. P.J. Parmar, he saw Dr. Parmar sign the Form A Transfer, althoughhe did not notice that her name was printed rather than written.

78 Ms. Tiwari’s recollection is a little different from Dr. P.J. Parmar’s.She recalls that, in the morning on January 6, when she and Dr. Parmarwoke up, Dr. P.J. Parmar said to them “let’s go for a ride.” According toMs. Tiwari, they would often take Dr. Parmar out for some sightseeing.As Ms. Tiwari recalled, Dr. Parmar said yes to what Dr. P.J. Parmar sug-gested, and also said that “We need to get the Comox document signedtoo.” As Ms. Tiwari recalled, they got into the car. She was sitting in theback passenger seat. Dr. P.J. Parmar drove around to a few parks andthen stopped at a bank where the notary was. On cross-examination, sheagreed that the bank was in a strip mall (something that was not put toDr. P.J. Parmar on cross-examination). They all went into the bank. Sherecalled that the notary did not have an office; rather, he had a desk inwhat she called “the lobby.” She testified that she saw Dr. Parmar signthe Form A Transfer. Otherwise, Ms. Tiwari’s recollection of details waspoor.

79 Neither Ms. Tiwari nor Dr. P.J. Parmar was asked and neither testi-fied about what happened to the Form A Transfer after it was signed.

80 According to Dr. P.J. Parmar, after the three of them left the bank,and since this was going to be the outing for the day, he drove Dr.Parmar and Ms. Tiwari around a little, passing by a couple of parks.Then they returned to Downers Grove.

81 Beginning about Noon on January 6, 2011, Dr. Parmar was seen by aphysical therapist from Greatland for an assessment, which took about 50minutes. The therapist completed an evaluation form with his observa-tions and comments. Under “Mental status: alert + oriented X,” he cir-cled 2 (rather than 1 or 3). He did not check the box “frequently con-fused.” There are a number of items printed on the form, for example:Speech, Vision, Hearing, Pain, Edema and so on, with space for the ther-apist’s comments or observations. In the space beside “Speech,” the ther-apist appears to have written “diminished cognit.” Although the therapistidentified a number of deficits (for example, strength, balance, range ofmotion and bed mobility), he indicated Dr. Parmar’s rehab potential as“good.”


82 After the therapist’s visit, Dr. Parmar was fatigued. Dr. P.J. Parmaracknowledged that he signed the therapist’s “Physical Therapy ProgressNote,” rather than Dr. Parmar.

83 On cross-examination, it was put to Dr. P.J. Parmar that on January 5and 6, he signed several other documents, rather than having his mothersign them. Some of these were included in the bundle marked as Ex. 49,and Dr. P.J. Parmar acknowledged that he signed the documents. How-ever, he rejected the suggestion put to him that he only signed the docu-ments because Dr. Parmar’s condition had deteriorated to the extent thatshe was incapable of signing, and he explained why he signed the docu-ments in question. Essentially, the explanation was these were docu-ments that anyone could sign, and there was no need for Dr. Parmar,personally, to sign them.

84 I accept Dr. P.J. Parmar’s evidence on this point. It is apparent that anumber of these documents are in respect of medical equipment (for ex-ample, a wheelchair, portable oxygen system and so on) being deliveredfor Dr. Parmar’s use, some of which was recommended and delivery or-ganized when she was in hospital on January 3 and 4. In the circum-stances, Dr. P.J. Parmar’s explanation makes sense and is reasonable.There was no need to trouble Dr. Parmar to sign a document acknowl-edging delivery of equipment, when her son was available to do it. Therewas nothing inherent in the contents of the documents (despite what theservice provider might have thought) that, in my opinion, required a sig-nature from the patient herself.

85 However, about mid-morning on January 7, 2011, Dr. P.J. Parmar lefta voice-mail message for Mr. Parmar in which he said:

Hey, this is P.J. Mom continues to not do very well and doing poorereach day in many ways, so I don’t know, whatever you are up to, youmight want to be around here. I think Karishma is coming this eve-ning, but anyway, I just want to let you know things aren’t going sowell. Bye.

86 According to Dr. P.J. Parmar, he had no concerns about Dr. Parmar’smental functioning until the evening on January 7. Until then, althoughhe had noticed gradual changes, he and his mother had been able to carryon normal conversations; she continued to do puzzles such as Sudoku;she discussed her affairs with him. However, in the afternoon on January7, Dr. P.J. Parmar noticed that Dr. Parmar seemed slow to rouse from anap, and she was less responsive and more confused. She seemed in-creasingly lethargic, and was unable to answer questions properly.


87 Mr. Parmar returned to Downers Grove in the evening on January 7(a Friday). According to Dr. P.J. Parmar, that evening, he and Mr.Parmar decided that, the next morning, they would take Dr. Parmar towhat Dr. P.J. Parmar understood (based on Mr. Parmar’s advice) was thenearest hospital, Adventist Hinsdale Hospital (“Hinsdale”). Dr. P.J.Parmar explained that what needed to be done was some imaging tests tocheck on fluid in Dr. Parmar’s lungs and blood tests to check on Dr.Parmar’s liver enzymes, and those tests could be done anywhere. As faras he was concerned, it was unnecessary in the circumstances to make along drive to the University of Chicago Medical Centre.

88 Accordingly, in the morning on January 8, 2011, Dr. P.J. Parmar tookDr. Parmar to the emergency department at Hinsdale. Ms. Tiwari wentwith them. Mr. Parmar and his wife arrived at the hospital a little later.As Dr. P.J. Parmar recalled, he talked to the doctors in the emergencydepartment and gave them his assessment of his mother’s condition and ahistory of her present illness. On cross-examination, it was put to himthat, in giving a history, he told the emergency doctors that Dr. Parmarhad had “altered mental status for the past three days.” This was some-thing recorded on a record apparently obtained from Hinsdale. Dr. P.J.Parmar rejected what was put to him and testified he did not provide thehistory on this particular document, although he had provided a history tothe doctor shown as completing a separate record headed “EmergencyReports.” He also denied that he reported to Dr. Sharif that Dr. Parmarhad had an “altered mental status for the past three days.”

89 Dr. Sharif did not testify. There is no admissible evidence concerningher views or conclusions or diagnoses in relation to Dr. Parmar as ofJanuary 8, 2011, and no admissible evidence that she was the source ofwhat is set out in the “History” section of the Hinsdale document. Thereis also no evidence that Dr. Sharif told Dr. P.J. Parmar to take Dr. Parmarto Hinsdale on January 8 (rather than the decision being made by Dr.Parmar’s sons), and Dr. P.J. Parmar denied it on cross-examination. TheHinsdale documents are not covered by the Document Agreement, andare not admissible as business records.

90 Some tests, including blood tests, were done throughout the day. Thelast set of results came back about 5:30 p.m. According to Dr. P.J.Parmar, the blood tests showed that the levels of toxins in Dr. Parmar’sblood had increased very significantly, to a point where life was not sus-tainable and Dr. Parmar could not recover. With this very sad news, Dr.


P.J. Parmar, Mr. Parmar, Ms. Tiwari and Dr. Parmar left Hinsdale andreturned home to Downers Grove.

91 As Ms. Tiwari recalled, when they got home, Dr. Parmar told her thatshe wanted to take a shower. She recalled her sister saying that this wasso Ms. Tiwari would not have to bathe her after Dr. Parmar died. It wasvery emotional. As Ms. Tiwari recalled, she prepared the shower for Dr.Parmar, and when it was ready, Dr. Parmar came in and then asked Ms.Tiwari to leave, which she did. After Dr. Parmar was finishing bathing,Dr. Parmar put on new pajamas that Mr. Parmar had bought for her.

92 Dr. Parmar died at home about Noon on January 9, 2011. Accordingto Ms. Tiwari, about an hour or so before she died, she spoke on thetelephone with her aunt from Victoria. This was the same aunt who hadlooked after Dr. Parmar when she first arrived in B.C.

(f) The Form A Transfer is registered on January 21, 201193 The Form A Transfer was submitted by Ms. Tiwari for registration on

January 19, 2011, and registered on January 21, 2011.94 There is no dispute that, before she died, Dr. Parmar never gave Ms.

Tiwari any of the blank cheques she had signed and that were in herpurse, and never gave Ms. Tiwari any money to cover taxes and otherexpenses associated with transferring Comox from Dr. Parmar’s nameinto Ms. Tiwari’s name.

95 On January 28, 2011, Ms. Tiwari sent an e-mail message addressed toboth Dr. P.J. Parmar and Mr. Parmar concerning Comox. The messageread in part:

Now the Comox street property I was not able to sell even at arediculous [sic] price so your mother decided to transfer it to me.

But she was not able to sign the paperwork that came later to dealwith the taxes.

Following are the costs: [described] Total of $95,000

Surinder had signed a blank cheque, it is in her purse. I need you tofill in the amount, make it payable to me and fedex it to me ASAP

[I] will be using my line of credit and pay the amount on Mondaywhile waiting for this cheque.

96 According to Mr. Parmar, he did not read this e-mail message untilmuch later. However, Dr. P.J. Parmar responded promptly. He removedone of the blank cheques his mother had signed - cheque no. 3218 - fromher purse, dated it, filled in the amount of $95,000, made it payable to


Ms. Tiwari and filled in the “For” section as “Comox property.” He thensent the cheque to Ms. Tiwari. However, Dr. Parmar’s bank refused tohonour the cheque. When Ms. Tiwari informed Dr. P.J. Parmar aboutthis, he made arrangements to personally wire funds to Ms. Tiwari.

97 When Dr. Parmar died, the RBC Account had a balance of$11,736.98. After Dr. Parmar died, Ms. Tiwari withdrew the remainingbalance and closed the Account.

The Expert Witnesses98 Two expert witnesses testified at trial: Dr. Myronuk and Dr.

O’Breasail. Both are medical doctors and psychiatrists. Dr. Myronuk alsohas a sub-specialty in geriatric psychiatry. However, when Dr. Parmardied, she was only 62. Given Dr. Parmar’s age, I would not place anygreater weight on Dr. Myronuk’s opinions merely because of his addi-tional qualification in geriatric psychiatry, as compared with Dr.O’Breasail’s opinions.

99 Dr. Myronuk’s reports were marked as Ex. 25 and Ex. 26.100 Dr. Myronuk’s opinion concerning Dr. Parmar’s capacity is found in

Ex. 25. His opinion was based on four assumed facts: [Dr. Parmar] a retired specialist physician, died on 9 January 2011with cancer of the esophagus that had spread widely through herbody.

[Dr. Parmar’s] terminal illness entailed liver failure, kidney failure,and malnutrition.

[Dr. Parmar] would have experienced significant pain and discomfortin the course of her terminal illness, and would have required strongopioid narcotic analgesics for comfort.

A Home Health Admission Services Agreement [Ex. 3] signed by[Dr. Parmar] on 5 January 2011 and by the admitting RN shows that[Dr. Parmar] was unable to spell her own surname correctly, withmultiple errors.

101 Dr. Myronuk then set out a section entitled “Background.” There, hesaid [italics in original; footnotes omitted]:

Delirium is the medical term for impaired mental functions of atten-tion, awareness, and other cognitive abilities that “... is a direct physi-ological consequence of another medical condition, substance intoxi-cation or withdrawal ... or exposure to a toxin, or is due to multipleetiologies.” Delirium is prevalent among hospitalized patients, and isidentified in up to 83% of patients at end of life. The average dura-


tion of cognitive impairment before death in patients with advancedcancer is 16 days. Frank delirium in this population is present for amedian of 6 days prior to death.

Dr. Myronuk also described kidney failure, liver failure and malnutrition.102 Dr. Myronuk then discussed executive cognitive functions, and said

[italics in original; footnotes omitted]: Executive cognitive deficits will impair a person’s capacity to makereasoned, deliberative decisions. Failure of monitoring, inhibitionand problem-solving lead to persons with executive cognitive dys-function to make perseverative errors, the abnormal repetition of aresponse or behaviour when it is no longer relevant or appropriate.Dr. Parmar showed a pattern of perseverative error when putting hername on the Home Health Admission Services Agreement Form on 5January 2011 repeating the letter “P” in her name several times.

103 Dr. Myronuk then set out his opinion: Based on the information at hand, it is more probable than not that[Dr. Parmar] was suffering from delirium in the final days of her life,and most probably would have had cognitive impairment for morethan two weeks prior to her death. It is typical for delirium to fluctu-ate in its intensity, ... [Dr. Parmar] may have had lucid intervals inthe course of her terminal decline, but in general as a patient’s condi-tion deteriorates the clouding of consciousness worsens and intervalsof clear mentation are less frequent and less complete. By the time[Dr. Parmar] signed the Home Health Admission Services Agree-ment on 5 January 2011, the day prior to the real estate transaction inquestion, she was demonstrating clear evidence of significantly im-paired executive cognitive function.

104 On cross-examination, Dr. Myronuk clarified that by “clear evidence”he meant the perseverative error in the Home Health Admission Form,and the failure to correct it. He agreed that an individual can have cogni-tive impairment and still function. He said that he did not have enoughinformation to say whether whatever cognitive impairment Dr. Parmarwas experiencing was disabling for her.

105 In Ex. 26, Dr. Myronuk provided an interpretation of the laboratoryresults of the blood work done for Dr. Parmar, particularly on January 5and January 8, 2011. In a section titled “Background,” Dr. Myronuk il-lustrated the lab results in three separate graphs: ammonia, sodium andblood urea nitrogen; total bilirubin, potassium and magnesium; and liverenzymes. He said that the data in his graphs showed evolving organ fail-ure in the kidneys and liver, although he acknowledged on cross-exami-


nation that he was not intending to say that the progression of the toxinsin Dr. Parmar’s blood was linear (as the graphs implied). He said further(still under the heading “Background”) that, around January 5, 2011[footnotes omitted],

[Dr. Parmar] entered a state of accelerated deterioration in metabolicstate with progression to critically abnormal levels of potassium andammonia by the morning of January 8th. Ammonia elevation is thecentral cause of hepatic encephalopathy, and clinically significantneurocognitive impairment may be established well before otherovert signs of liver failure are present.

106 Dr. O’Breasail submitted two reports (dated September 4, 2014 andJanuary 7, 2015), which were marked as part of Ex. 57.

107 In his September 4, 2014 report, Dr. O’Breasail commented on Dr.Parmar’s pain medications: morphine and the fentanyl patch. In his opin-ion, a dose of morphine of between 0.5 mg-2.5 mg once or twice a day isa relatively low dose, and should not have had a significant effect on Dr.Parmar’s mental status. The fentanyl patch dose of 25 mcg per hour wasalso a low dose. In his opinion, on reviewing Dr. Parmar’s various signa-tures in the three weeks prior to her death, there was not a pattern ofperseverative type behaviour, and the repeated Ps on the Home HealthAdmission Form was not, in itself, a pattern. Dr. O’Breasail disagreedwith Dr. Myronuk’s opinion that it was probable Dr. Parmar was suffer-ing from delirium in the final days of her life. In his opinion, there wasnothing to indicate delirium, which he described as a syndrome or groupof symptoms caused by a disturbance in the normal functioning of thebrain. He explained that an individual with delirium has a reduced aware-ness of and responsiveness to the environment, and delirium is oftenmarked by illusions, hallucinations and delusions. He said, although de-lirium is common, particularly close to death, it is not present invariably.

108 Dr. O’Breasail’s report dated January 7, 2015 comments on Dr.Myronuk’s report Ex. 26 (and also provides some comments on otherreports that were not admitted into evidence). Dr. O’Breasail agreed withDr. Myronuk that, based particularly on the data from January 8, Dr.Parmar had entered a phase of marked deterioration in metabolic state,and had critically abnormal levels of potassium and ammonia. Sincethere were no data from January 6 or 7, Dr. O’Breasail disagreed withDr. Myronuk that Dr. Parmar entered a phase of accelerated deteriorationbeginning on January 5, with progression to critically abnormal levelsthe morning of January 8. The graphs, in Dr. O’Breasail’s opinion, there-


fore presented a misleading picture (something that Dr. Myronuk did notreally dispute).

109 In closing submissions, Mr. Huntsman argued that, on the issue of Dr.Parmar’s capacity, the reports of Dr. Myronuk “should occupy the fieldto the exclusion of” Dr. O’Breasail’s opinions. Mr. Huntsman attackedDr. O’Breasail on a number of fronts, and he submitted that Dr.O’Breasail’s reports were “a mess of unproven facts and unstatedassumptions.”

110 For example, Mr. Huntsman criticized Dr. O’Breasail for denyingthat Dr. Parmar was suffering from HE, and argued that Dr. O’Breasail’sevidence was “not believable in the circumstances of the overwhelmingevidence that she was.” I have noted above that there is no admissibleevidence from anyone qualified to give it, including Dr. Myronuk, thatDr. Parmar was diagnosed as suffering from HE. Dr. O’Breasail ex-plained that it is a clinical diagnosis, not one made on the basis of resultsof blood tests. A medical diagnosis, and the reasoning that led to thatdiagnosis, is a matter of expert opinion. The court cannot itself useclinical or medical records to arrive at a medical diagnosis in the absenceof expert opinion. See Edmondson v. Payer, 2011 BCSC 118 (B.C. S.C.),at paras. 38-39.

111 In my view, much of Mr. Huntsman’s attack on Dr. O’Breasail wasunfair, and ultimately unpersuasive. In any event, even accepting Dr.Myronuk’s opinion that Dr. Parmar was “probably” suffering from delir-ium does not mean that Dr. Parmar, in the final days of her life, wasconstantly suffering from or exhibiting the signs and symptoms of delir-ium. Dr. Myronuk himself acknowledges that it is “typical for deliriumto fluctuate in intensity.” This, together with the opinions expressed byDr. O’Breasail and the observations made by others (Ms. Tande, thephysical therapist, Dr. P.J. Parmar and Ms. Tiwari), would support theconclusion that, up until January 7, 2011, Dr. Parmar at the very leasthad periods of lucidity in which she was able to function reasonablywell, although she was increasingly weak and became fatigued quickly.

Discussion and analysis

(a) Comments on credibility and reliability112 In closing argument, Mr. Huntsman mounted a fierce attack on the

credibility and reliability of both Ms. Tiwari and Dr. P.J. Parmar. Forexample, with respect to Ms. Tiwari, Mr. Huntsman submitted that shewould not hesitate to lie if she thought she could get away with it. He


submitted Ms. Tiwari was evasive and non-responsive during cross-ex-amination at trial, and, rather than telling the truth, gave answers thatwere tailored to advance her position that the transfer to her of Comoxwas a gift. With respect to Dr. P.J. Parmar, Mr. Huntsman submitted thathe treated the witness box as “a pulpit to provide a lecture in support of”Ms. Tiwari’s side of the story, and that in all other respects he was “eva-sive, deceptive and defensive.”

113 With respect to Mr. Parmar, Mr. Huntsman acknowledged that, whengiving his evidence, Mr. Parmar was “wound up, distressed and ex-tremely excitable,” and even during his direct examination, Mr. Parmarhad difficulty staying on subject and controlling his emotions. On theother hand, Mr. Huntsman submitted that on cross-examination, Mr.Parmar (although argumentative) was still responsive, not evasive, andconceded or agreed with points where it was reasonable to do so.

114 Mr. Jordan argues that both Ms. Tiwari and Dr. P.J. Parmar werecredible and reliable witnesses, and says that their evidence concerningkey events should be accepted.

115 With respect to Mr. Parmar, Mr. Jordan submitted that most of hisevidence was unhelpful, since he was not present during much of the lastweek of Dr. Parmar’s life, including on January 5 and 6. In Mr. Jordan’ssubmission, Mr. Parmar’s strong perspective, that his mother, when veryclose to death, was victimized by Ms. Tiwari and Dr. P.J. Parmar, perme-ated virtually everything he had to say and seriously impeded his abilityto give credible and reliable evidence.

116 Both Mr. Huntsman and Mr. Jordan cite Bradshaw v. Stenner, 2010BCSC 1398 (B.C. S.C.) (one of the leading cases on credibility analysis),and Madam Justice Dillon’s discussion at paras. 186 and following. Theart of assessment of credibility involves examination of various factorssuch as: the witness’s ability and opportunity to observe events; the firm-ness of the witness’s memory; the witness’s ability to resist the influenceof interest to modify his or her recollection; whether the witness’s evi-dence harmonizes with independent evidence that has been accepted;whether the witness changes his or her testimony during direct and cross-examination; whether the witness’s testimony seems unreasonable, im-possible, or unlikely; whether a witness has a motive to lie; and the de-meanour of a witness generally. Moreover, the assessment of a witness’scredibility must reasonably subject the witness’s story to an examinationof its consistency with the probabilities of the surrounding conditions orcircumstances. The real test of the truth of the story of a witness in such a


case must be its harmony with the preponderance of the probabilities thata practical and informed person would readily recognize as reasonable inthat place and in those circumstances. See Faryna v. Chorny (1951),[1952] 2 D.L.R. 354 (B.C. C.A.), at pp. 356-357.

117 In my opinion, Mr. Parmar was indeed very excitable and had diffi-culty focussing on answering questions, even during his direct examina-tion. I agree with Mr. Jordan that Mr. Parmar’s strong perspective, thathis mother was victimized by his aunt and his brother, permeated virtu-ally everything he had to say. Mr. Parmar had a story and point of viewthat he wished to communicate to the court, and was very intent on com-municating it. In my opinion, these factors make the reliability of hisevidence highly questionable. I have concluded that he is very bitter to-wards his brother (whom he is suing in Illinois), and will go to greatlengths (including accusing him of practicing medicine illegally) to tryand damage him. He exhibited the same feelings of bitterness and a veryhigh level of distrust towards his aunt, Ms. Tiwari. It became apparentthat Mr. Parmar was personally involved in investigating matters with aview to bringing litigation against his aunt and brother, and developing acase against his aunt. Rather than tell me about the facts, Mr. Parmar wasvery anxious to communicate to me what he suspected or had turned upor concluded as a result of his investigations. This, unfortunately, wascompletely unhelpful. I needed facts. It also affected, negatively, theweight I am prepared to place on Mr. Parmar’s evidence.

118 So, for example, I am less inclined to place much weight on Mr.Parmar’s observations concerning Dr. Parmar. The event he describes onDecember 29 was certainly frightening, but it is hard to reconcile what Iam being asked to infer (that Dr. Parmar had, by that time seriously dete-riorated cognitively) with events that same day and the days following atthe University of Chicago Medical Centre. Moreover, Mr. Parmar’s obvi-ous and very strong suspicions about his aunt and his brother make himan unreliable reporter of their conduct, in my opinion.

119 Ms. Tiwari was, at times, evasive and argumentative on cross-exami-nation. However, she was often faced with argumentative, multi-part,somewhat convoluted questions to try and answer. Assumptions put toher in questions (for example, that Dr. Parmar almost died on December30) were not borne out by the Clinical Records. On the other hand, therewere contradictions between her evidence at trial and her evidence ondiscovery concerning Dr. Parmar’s cheque, and the contradictions werenoteworthy. I have concluded that I need to be cautious before accepting


Ms. Tiwari’s uncorroborated evidence, except where she has made state-ments against her interest.

120 Dr. P.J. Parmar, unlike Mr. Parmar, was in a position to observe hismother in the last ten days of her life. His evidence is, generally, sup-ported by the evidence in the Clinical Records, which are of great assis-tance and are reliable evidence with respect to the medical proceduresperformed and Dr. Parmar’s condition, particularly during Dr. Parmar’shospitalizations on December 30 and 31, 2010 and January 3 and 4,2011. His evidence concerning the visit to the bank and the notary themorning of January 6, 2011 is, in the circumstances, reasonable. Moreo-ver, although Dr. P.J. Parmar was pressed on many points during cross-examination, his evidence concerning January 6 was not challenged atall.

121 Dr. P.J. Parmar was also, at times, argumentative and combative dur-ing cross-examination. However, that reaction was predictable in the faceof many of the questions put to him. For example, during one series ofquestions, Mr. Huntsman pressed Dr. P.J. Parmar to admit that he wasnot present at the hospital with Dr. Parmar on December 30. However, asthe Clinical Records disclosed, Mr. Huntsman’s questions were based ona false assumption, namely, that there was a single hospital admission forDr. Parmar that day. The Clinical Records disclosed (as Dr. P.J. Parmartestified) there were in fact two - one in the morning and one later in theday - and that Dr. Parmar was admitted to hospital overnight on Decem-ber 30, as Dr. P.J. Parmar testified.

122 Of course, Dr. P.J. Parmar also exhibits a high level of animosity to-wards Mr. Parmar. In that sense, the feelings of the brothers are, regretta-bly, mutual.

(b) Was there a contract whereby Dr. Parmar would sell and Ms.Tiwari would purchase Comox for $250,000?

123 The first claim made in the amended notice of civil claim is that Dr.Parmar and Ms. Tiwari were parties to a contract whereby Dr. Parmaragreed to sell and Ms. Tiwari agreed to purchase Comox for the price of$250,000. Judgment is then sought for $250,000 as the unpaid purchaseprice. Although the plaintiff’s position was presented somewhat differ-ently in closing argument than in the notice of civil claim, I propose todeal with what I will call the “contract claim” first.

124 In my opinion, the contract claim must fail because, on the evidence,there was never any agreement between Dr. Parmar and Ms. Tiwari that


Ms. Tiwari would pay anything for Comox, much less pay $250,000. It isa trite principle of law that in order for an agreement to be binding be-tween the parties, they must have reached consensus on the essentialterms of their contract. Ms. Tiwari’s evidence, which I accept, was thatshe communicated firmly to Dr. Parmar that she was not interested inComox if she was expected to pay for it. In my opinion, the words andactions of Dr. Parmar and Ms. Tiwari do not establish any intention to bebound contractually.

(c) Did Dr. Parmar sign the Form A Transfer?125 In the amended notice of civil claim, the plaintiff alleged:

25. ... the Defendant Tiwari impersonated [Dr. Parmar] and forgedthe signature of [Dr. Parmar] on the Form A Transfer.

26. [Dr. Parmar] always signed her name in a style that was verydifferent to that which is on the Form A Transfer and [Dr. Parmar]had not signed anything for at least 3 weeks prior to the execution ofthe Form A Transfer. She had been too ill to sign anything.

27. The signature on the Form A Transfer bears a striking resem-blance to the handwriting of the Defendant Tiwari, while bearing noresemblance whatsoever to the normal signature of [Dr. Parmar].

126 In Part 2 of the amended notice of civil claim (Relief sought), theplaintiff alleged, under the heading “Impersonation and Fraud”:

10. A declaration that the Defendant Tiwari impersonated [Dr.Parmar] and forged her signature upon the Form A Transfer such thatthe title to the Property was fraudulently converted by the DefendantTiwari.

127 However, at trial, and apart from the speculation volunteered by theplaintiff during his testimony (none of which was admissible as evi-dence), a genuine attempt to prove the scenario alleged was essentiallyabandoned. It was never put to Ms. Tiwari or Dr. P.J. Parmar, duringtheir cross-examinations, that on January 6, 2011, Ms. Tiwari imperson-ated Dr. Parmar before a notary and herself signed the Form A Transfer.Other parts of the scenario advanced by Mr. Parmar during his testi-mony, for example, that Ms. Tiwari and Dr. P.J. Parmar deliberatelysought out a bank branch where Dr. Parmar was not known, were alsonot put to Dr. P.J. Parmar or Ms. Tiwari during cross-examination. Thenotary, Mr. Sperlik, whose signature and stamp appears on the Form ATransfer, was not called as a witness.


128 Nevertheless, the plaintiff argued in closing that the Form A Transferwas a forgery. He advanced the argument based on evidence concerningDr. Parmar’s circumstances in the days leading up to January 6, 2011,the weather around Chicago on January 6, Dr. Parmar’s general approachto business matters, and the appearance of Dr. Parmar’s signatures ondocuments signed around the same time (as compared with the signatureon the Form A Transfer), combined with a submission concerning thelack of credibility of Dr. P.J. Parmar and Ms. Tiwari.

129 The burden of proof that the Form A Transfer is a forgery is on theplaintiff.

130 There was no admissible opinion evidence from a handwriting expert.131 In my opinion, the circumstantial evidence on which the plaintiff re-

lies cannot be given much weight. Dr. Parmar was not a shut-in, confinedto bed, during the last week of her life. She was in hospital on January 3and 4, where it is clear she interacted with a number of people. TheClinical Records for those days (apart from mention of some confusionin the morning on January 4) do not indicate that she was unable to ap-preciate and understand what was going on around her. Rather, they indi-cate the reverse. She was considered well enough and capable enough tosign Surgical Consents and other forms, even though Dr. P.J. Parmar wasavailable as her medical power of attorney and could have signed hospi-tal documents if necessary. Mr. Parmar’s very strong feeling and opinionthat his mother would not have transferred real estate without speaking toa lawyer and an accountant is not proof of the facts. Based on Ms.Tiwari’s evidence, Mr. Brown, Mr. Hough and Mr. Sihota were allinvolved.

132 In addition, there is Dr. Parmar’s assessment by the physical therapistto consider. The assessment began around Noon on January 6, 2011. Thisis after the visit to the bank described by Dr. P.J. Parmar and Ms. Tiwari.Although, in his evaluation report, the therapist noted a number of areasof concern, there is nothing in his notes to indicate that Dr. Parmar didnot understand what was going on during the assessment, or that, at thatstage, she lacked the capacity to make a valid gift. In my opinion, therewas nothing in the therapist’s report to suggest that, earlier in the morn-ing on January 6, 2011, Dr. Parmar was too frail and weak to have lefthome to do some business.

133 It is true there are some differences between Dr. P.J. Parmar’sdescription of the trip to the notary, and Ms. Tiwari’s description. How-ever, their evidence would not necessarily be more credible if they had


told identical stories. As I noted above, Dr. P.J. Parmar’s evidence thathe drove his mother and Ms. Tiwari to Dr. Parmar’s regular bank branchwas not challenged during his cross-examination. His evidence that theymet with the notary there, and that he saw Dr. Parmar sign the Form ATransfer there, was also not challenged.

134 Ms. Tiwari’s evidence about the events on the morning of January 6was more vague than Dr. P.J. Parmar’s. However, I do not find this sur-prising, since (according to Dr. P.J. Parmar) it was he and Dr. Parmarwho, the evening before, had agreed they were going to go to the notarythe next morning, and Dr. P.J. Parmar was doing the driving. On theessentials, they agree: the three of them went to the bank and Dr. Parmarsigned the Form A Transfer before a notary. More importantly, and de-spite accusing Ms. Tiwari during cross-examination of lying under oath,plaintiff’s counsel never put to her that she had in fact forged her sister’ssignature on the Form A Transfer.

135 In my opinion, given the seriousness of an allegation of forgery, andthe stigma attached to it, it was incumbent on plaintiff’s counsel to putthe plaintiff’s version of events to Ms. Tiwari and Dr. P.J. Parmar duringcross-examination.

136 I turn then to the signature on the Form A Transfer. The plaintiff saysthat the most compelling evidence of forgery is that there is no correla-tion between it and the many other examples of Dr. Parmar’s signature inevidence.

137 Many factors can affect and change the appearance and quality of asignature. These can include fatigue, inattention, illness, physical weak-ness, age (although, at 62, Dr. Parmar could hardly be considered eld-erly), circumstances in which the signature is written (e.g., on a hard sur-face, on a soft surface, standing up, sitting down), the space for thesignature, the writing implement, and so on. Dr. Parmar’s signature from2004 on the document marked as Ex. 19 barely resembles her signatureson the signature card from 2009 marked as Ex. 14 or the signature cardfor the RBC Account (Ex. 63) from 1998. The individual letters in hersignature from 2009 are quite indistinct, for example. In addition, thestyle of printing on Ex. 19 is completely different from the printing onEx. 21. The only person who identified the printing on Ex. 19 as Dr.Parmar’s was Mr. Parmar. Neither Dr. P.J. Parmar nor Ms. Tiwari wasasked. The printing on Ex. 19 is also quite different from the printing andhandwriting on the 3-page document marked as Ex. 22, which Mr.


Parmar identified as Dr. Parmar’s printing and handwriting. I note thatmuch of Ex. 22 is printed in block capitals.

138 In the last ten days of her life, Dr. Parmar was asked to, and did, signmany documents.

139 Each surgical procedure, for example, required Dr. Parmar to sign aSurgical Consent, and she signed other forms during her visits to theUniversity of Chicago Medical Centre. Dr. Parmar’s signatures on thesedocuments are not at all like what appears on the Form A Transfer. Forexample, her signature on the January 3 Surgical Consent is very smalland almost illegible. The quality of handwriting has deteriorated from thesignatures on documents signed December 29 and December 30. Thehandwriting has deteriorated even further on the Surgical Consent signedJanuary 4, although a reasonable explanation would be that, when thisdocument was signed, she was still recovering from the surgery the daybefore. Indeed, that might well explain the appearance of Dr. Parmar’ssignatures on the other documents signed at the hospital on January 4.The duplicate signature on the Surgical Consent might be explained byDr. Parmar attempting to sign more clearly on a document she knew wasimportant to the hospital and her surgeons.

140 Dr. Parmar’s first signature on the Home Health Admission Formshows little improvement from January 4 in terms of the quality of thehandwriting. In addition, the second signature, with the perseverative er-ror, is very odd indeed.

141 In contrast to what can be seen on these documents, the signature onthe Form A Transfer is not in cursive writing, but printed in blockcapitals. Instead of the tiny, cramped handwriting on the January 3 andJanuary 4 hospital documents, the letters are legible.

142 Ms. Tiwari concedes that what appears on the Form A Transfer is notDr. Parmar’s normal signature. However, in closing argument, Mr. Jor-dan submitted that the writing is identical to the printed signature on thecover of “Guess how much I love you,” Ex. 21, which is known to be Dr.Parmar’s printing.

143 I agree. I find that, on the morning of January 6, 2011, and as Dr. P.J.Parmar testified, he drove himself, Dr. Parmar and Ms. Tiwari to Dr.Parmar’s regular bank, and there Dr. Parmar signed the Form A Transferbefore the notary. The printed signature is, in my opinion, very similar (ifnot identical) to known printing of Dr. Parmar (Ex. 21 and Ex. 22). Thereis evidence that Dr. Parmar’s energy level was reasonably good in themorning (and waned as the day went on), which would help explain why


the letters on the Form A Transfer are legible and the quality of the writ-ing is better than on documents signed on January 3 and 4. I also con-clude that Dr. Parmar, as she discussed with Dr. P.J. Parmar the eveningbefore, recognized that the document was important, and this would alsohelp explain why she would make an extra effort to write clearly.

144 Accordingly, I find that the plaintiff has failed to satisfy the burdenon him to prove that the signature on the Form A Transfer is a forgery.

(d) Did Dr. Parmar have the capacity to make a gift?145 The plaintiff next argues that, as of January 6, 2011, Dr. Parmar

lacked the capacity to make a valid gift. He relies on Dr. Parmar’s at-tempt on December 29, 2010 to get out of the car on the freeway, theperseverative error in the Home Services Admission Form and the opin-ion evidence of Dr. Myronuk to support this argument.

146 Mr. Huntsman submits that, in this case, given the circumstances inwhich the Form A Transfer was signed (just before Dr. Parmar died), therelevant test for capacity is that applied to testamentary dispositions,rather than inter vivos gifts. This point is discussed by Barrow J. inSchretlen Estate v. Turney, 2010 BCSC 101 (B.C. S.C.), at para. 32 [un-derlining added]:

[32] Counsel for the estate argues that the capacity necessary to makean inter vivos gift is the same as that needed to make a valid testa-mentary disposition....I accept that the capacity necessary for thesetwo forms of giving may be the same in some situations. In particu-lar, the more that an inter vivos gift resembles a testamentary disposi-tion, the greater the similarity in the required capacity. For example,when a gift involves a transfer from the donor into the joint names ofthe donor and others, the required capacity is more likely to be akinto that necessary to make a valid Will. That is so because the gift willtake full effect only on the death of the donor, assuming the donorsurvives the other joint owners. That was the situation in Brydon andin the authorities that support of the proposition that the required ca-pacity in the two situations is the same. In circumstances where theinter vivos gift is entirely divorced from the donor’s death and other-wise unlike a testamentary disposition, the capacity necessary to val-idly gift property may be less than that required to make a testamen-tary disposition. This point was made by McKenzie J. in Dacyshyn v.Dacyshyn Estate, [1996] B.C.J. No. 626 (S.C.) where, in dealing withan inter vivos transfer, he wrote at para. 25 that:

...Many of the leading cases on...a lack of capacity in-volve testamentary instruments. The standards for inter


vivos transactions on questions of...capacity are, if any-thing, less stringent than those for testamentaryinstruments...

More precisely, the content of that which must be understood by thedonor is, or may be, less extensive and less complicated than that towhich a testator must address his or her mind, and in that sense, therequired capacity is less in the case of inter vivos gifts.

147 Thus, if a gift only takes effect on death of the donor (the examplegiven by Barrow J. is when there is a transfer into joint names, with aright of survivorship), then it may well be appropriate to look to the ca-pacity required to make a testamentary disposition, since the gift closelyresembles a testamentary disposition.

148 Testamentary capacity is discussed in Elder Estate v. Bradshaw, 2015BCSC 1266 (B.C. S.C.) (cited by Mr. Huntsman), where Meiklem J.wrote (at paras. 29-30):

[29] The seminal case defining the meaning of testamentary capacityis Banks v. Goodfellow, [1861-73] All E.R. Rep 47 at 56:

It is essential to the exercise of such a power that a testa-tor shall understand the nature of the act and its effects;shall understand the extent of the property of which he isdisposing; shall be able to comprehend and appreciate theclaims to which he ought to give effect; and with a viewto the latter object that no disorder of the mind shallpoison his affections, pervert his sense of right, or preventthe exercise of his natural faculties; that no insane delu-sion shall influence his will on disposing of his property,and bring about a disposal of it which would not havebeen made otherwise.

[30] In assessing the evidence bearing on the issue of testamentarycapacity, I observe and adopt the comments of Harvey J. in Danchukv. Calderwood, [1997] B.C.W.L.D. 087 at para. 113:

[113] Whether the testator’s mind was sound is a practicalquestion. It does not depend on scientific or medical defi-nition. Medical evidence is not required nor necessarilyconclusive when given. The question may be answered aswell by laymen of good sense.

149 Mr. Huntsman argues that, applying the test for testamentary capacityas described by Meiklem J. to the evidence, particularly in the light ofDr. Myronuk’s opinion evidence, Dr. Parmar lacked the capacity as ofJanuary 6 to make a valid gift.


150 I do not agree with Mr. Huntsman that the standard for testamentarycapacity is the appropriate standard here. There is no evidence that thetransfer of Comox from Dr. Parmar to Ms. Tiwari was only to take effecton Dr. Parmar’s death.

151 The “gift” of Comox, certainly as described by Ms. Tiwari, had twoaspects: the actual transfer of the property from Dr. Parmar to Ms. Tiwariand the payment of taxes associated with the transfer. It was not the typeof transaction that was strange to Dr. Parmar or one where she had noprevious experience. Rather, a few months before, she had completed thedisposition (although in the context of a sale) of her two other B.C.properties (Sunset and Fillinger), and dealt with payment of the associ-ated taxes. In that context, the gift of Comox to Ms. Tiwari was neithercomplex nor unusual.

152 There is no dispute that Dr. Parmar had already fully dealt with herassets through her 2009 Will and through the other arrangements she hadmade for her assets to be transferred to specific beneficiaries on herdeath. Comox was not her only asset, and certainly not her most valuableasset. As a result, the content of what Dr. Parmar needed to understandwas both less extensive and less complicated than that to which shewould have had to address her mind if she had been disposing of all ormost of her estate. In that light, in my opinion, the capacity required wasthat required to make an inter vivos gift.

153 However, in the result, I do not think it matters because, in my opin-ion, the plaintiff has failed to show that, as of January 6, 2011, Dr.Parmar lacked the capacity to make a valid gift, whatever standard isapplied.

154 The event on December 29, 2010, as described by Mr. Parmar, wasfrightening and unusual. However, it is unclear when in the day it hap-pened. One of the things that Dr. Parmar did on December 29, 2010 wassign the Medical Consent, and the Consent was co-signed and certifiedby a physician at the University of Chicago Medical Centre.

155 Mr. Parmar expressed the opinion that Dr. Parmar treated the signingof Medical and Surgical Consents as routine, implying that she looked onthem as unimportant and would sign anything put in front of her, withoutpaying any attention to what she was doing. I doubt very much that thiswas true. As a physician, Dr. Parmar would be well acquainted with theimportance of giving and obtaining a consent to a medical proceduresuch as surgery. I do not accept Mr. Parmar’s conclusory evidence con-


cerning his mother, as I think such behaviour would be out of characterfor her.

156 However, even if Mr. Parmar’s opinion was legitimate, it does notfollow that the physician co-signing the Medical or Surgical Consentpaid no attention to what he or she was doing or treated the step of ob-taining the patient’s consent as unimportant. If a physician were to cer-tify that the person who signed the Medical Consent “was capable ofunderstanding the nature of the patient’s physical condition” and therisks involved in accepting or refusing treatment, when that was not true,it would be a very serious matter, for both the patient and the hospital.

157 I find that the Medical Consent and the Surgical Consents in evi-dence, signed by Dr. Parmar and co-signed by a physician, provide relia-ble evidence that Dr. Parmar had the capacity to understand her physicalcondition, the nature of the proposed medical procedure and the risksinvolved. I find further that, given her capacity to understand those mat-ters, she had the capacity necessary to make a valid gift.

158 Moreover, I am unable to reconcile Dr. Myronuk’s opinion that Dr.Parmar was suffering from delirium in the final days of her life and mostprobably would have had cognitive impairment for more than two weeksprior to her death, with the Medical Consent signed on December 29, andrecords from her hospitalizations on December 30 and 31, 2010 and Jan-uary 3 and 4, 2011 contained in the Clinical Records. In my opinion, theMedical and Surgical Consents and the other medical records from Dr.Parmar’s hospitalizations provide strong support for the conclusion thatas of January 4, 2011, Dr. Parmar’s mind was sufficiently sound that shehad the capacity to make a valid gift of Comox.

159 What then of January 5 and 6?160 In Dr. Myronuk’s opinion, by the time Dr. Parmar signed the Home

Health Services Agreement, and based in particular on the perseverativeerror, Dr. Parmar was demonstrating “clear evidence of significantly im-paired executive cognitive function.” The implication of Dr. Myronuk’sevidence is that, as of January 5, Dr. Parmar’s cognitive functioning wasso severely impaired that she would have lacked the necessary capacityon January 6 to make a valid gift of Comox.

161 In my opinion, the evidence does not support that conclusion, and Dr.O’Breasail did not agree with it.

162 The perseverative error on the Home Health Services Agreement iscertainly of concern. However, her signing that document was not Dr.


Parmar’s only activity on January 5. That afternoon, Dr. P.J. Parmar tookher out to Dr. Sharif’s office and she had some blood work done. Thereis no admissible evidence to support the conclusion that, in the afternoonon January 5, anyone observed that Dr. Parmar was suffering from sig-nificantly impaired cognitive function or that she was unable to under-stand what she was doing or what was going on around her.

163 I have found that, in fact, in the morning on January 6, 2011, Dr.Parmar, Dr. P.J. Parmar and Ms. Tiwari made the trip to the notary andDr. Parmar signed the Form A Transfer. That was not Dr. Parmar’s onlyactivity on January 6. She was seen and assessed by the physical thera-pist around Noon. Although the therapist notes “diminished cognit” inrelation to Dr. Parmar’s speech, in my opinion, the remainder of hisnotes do not support the conclusion that on January 6, Dr. Parmar’s cog-nitive functioning was so severely impaired that she lacked the capacityto make a valid gift of Comox.

164 Accordingly, I find that the plaintiff has failed to show, on a balanceof probabilities, that on January 6, 2011, Dr. Parmar lacked the capacityto make a valid gift of Comox.

(e) Did Dr. Parmar in fact make a valid gift of Comox to Ms. Tiwari?165 As I noted above, the gift of Comox had two aspects: the actual trans-

fer of the property from Dr. Parmar to Ms. Tiwari and the payment oftaxes associated with the transfer. Ms. Tiwari’s evidence was firm andconsistent that she would never have accepted a transfer of Comox to herfrom Dr. Parmar unless Dr. Parmar had also agreed to make a gift of thetaxes.

166 The dual aspect of the gift is reflected in the facts pleaded by Ms.Tiwari in the Response to Civil Claim. She pleads:

48. ... [Dr. Parmar] agreed to pay the costs of the transfer and agreedshe would provide the Defendant with a cheque for those costs oncethey were known.

. . .

51. On January 6, 2011, [Dr. Parmar’s] son, [Dr. P.J. Parmar], took[Dr. Parmar] to a notary public’s office and the transfer form wasexecuted by [Dr. Parmar] there.

52. At that time, [Dr. Parmar] also wrote out a blank cheque to beused for the sales tax and holdback, and left it with her son.

. . .


54. On January 19, 2011, the Defendant registered the transfer... andpaid the property transfer tax.

55. The Defendant then ... contacted [Dr. Parmar’s] sons ... and askedfor the cheque in their mother’s purse for the sales tax and taxholdback.

56. The cheque was sent by courier to the Defendant.

. . .

60. When [Dr. Parmar’s] cheque was received, it was deposited tothe Defendant’s account.

61. On February 11, 2011, [Dr. Parmar’s] bank refused to honor thecheque due to the death ... .

62. On February 19, 2011, [Dr. P.J. Parmar] ... agreed to forward hisaunt the funds necessary to cover the expense of the sales tax andholdback and eventually did so.

63. In the result, the gift was perfected in accordance with the wishesof [Dr. Parmar] ....

64. The transfer was a gift and intended to be at no cost to theDefendant.

167 Since the transfer of Comox was gratuitous, Ms. Tiwari bears the bur-den to show that, at the time of the transfer, Dr. Parmar intended to makea gift: see Pecore v. Pecore, 2007 SCC 17 (S.C.C.), at para. 24. Equitypresumes bargains, not gifts. Ms. Tiwari also bears the burden to showthat a valid inter vivos gift was made.

168 In order to make a valid gift, the donor must have done everythingthat (according to the nature of the property) was necessary to be done totransfer the property and make the transfer binding on the donor. Thecourt will not act to complete an incomplete gift, and a mere promise tomake a gift is unenforceable. If authority is necessary for these basicprinciples, it can be found in Kooner v. Kooner (1979), 100 D.L.R. (3d)76 (B.C. S.C.), at pp. 79 -80. The Response to Civil Claim has clearlybeen pleaded with knowledge of these principles.

169 I find that, after Comox did not sell, and as she recognized her cancerwas terminal, Dr. Parmar probably did discuss with Ms. Tiwari transfer-ring Comox to her as a gift. On the evidence, Comox had been very diffi-cult to sell. In addition, Dr. Parmar’s general approach to estate planningwas to dispose of her assets outside of her estate, leaving virtually noth-ing to go through probate. There were reasons why Dr. Parmar wouldhave been disposed to make a gift to her younger sister, who had pro-vided care and companionship to Dr. Parmar during her illness and at the


end of her life. Against that background, making a gift of Comox to Ms.Tiwari would be a reasonable thing to do. Making a gift of Comox (in-cluding the taxes) is what Ms. Tiwari said she and Dr. Parmar discussed,including on December 30. Dr. P.J. Parmar’s evidence to the effect that,whenever his mother went into hospital for a procedure, she wanted tosettle things in advance, gives weight to Ms. Tiwari’s evidence concern-ing the discussions about Comox on December 30. The problem washow to make the gift? This can be seen in Ms. Tiwari’s evidence abouther communications with Mr. Brown, Mr. Hough and Mr. Sihota. Thesolution adopted was that Dr. Parmar would sign the Form A Transferand provide Ms. Tiwari with cheques to cover the expenses. I find, there-fore, that Dr. Parmar intended to make a gift of Comox to Ms. Tiwari.

170 However, in my opinion, the gift was never perfected during Dr.Parmar’s lifetime. An inter vivos gift cannot be perfected after the do-nor’s death.

171 Pecore and other cases (such as Chung v. La, 2011 BCSC 1547 (B.C.S.C.) (see paras. 39 and following); and Fuller v. Fuller Estate, 2010BCCA 421 (B.C. C.A.) (see paras. 41 and following and paras. 51-53))make it clear that the intention to make a gift is determined in relation tospecific conduct by the transferor that legally could constitute delivery ofa complete gift. In Fuller v. Fuller Estate, for example, the court wasconsidering the effect of transferring title to property into joint tenancy.That is what I am being asked to do in relation to the RBC Account. If,on all of the evidence, a gift was in fact intended at the time of the trans-fer, nothing more needed to be done to perfect the gift.

172 Here, however, the mere act of signing the Form A Transfer is noteffective to transfer or deliver anything. The circumstances are thereforequite different than those before the court in Chung v. La or Fuller v.Fuller Estate. At best, merely signing the Form A Transfer does no morethan express an intention to make a gift. Therefore, unless there is proofof delivery in this case, merely proving that Dr. Parmar intended to makea gift is insufficient. Here, and in contrast to cases such as Pecore, Ms.Tiwari must prove both that Dr. Parmar intended to make an inter vivosgift, and that she did in fact do that before she died. The law is clear thateven if someone intends to make a gift but does not perfect the giftbefore death, there is nothing.

173 There is an unfortunate gap in the evidence about what happened withthe signed Form A Transfer, after Dr. Parmar, Dr. P.J. Parmar and Ms.Tiwari left the bank the morning of January 6, 2011. Neither Dr. P.J.


Parmar nor Ms. Tiwari was asked. If Dr. Parmar retained possession ofthe signed Form A Transfer, and never delivered it to Ms. Tiwari beforeshe died, that would be fatal to the existence of a valid gift. In the ab-sence of evidence, I cannot draw any conclusions about where the FormA Transfer was when Dr. Parmar died on January 9, 2011. However,since Ms. Tiwari has the burden of proof on this issue, it would be opento me to conclude that, by leaving the gap in the evidence, she has failedto meet her burden. There is no dispute on the evidence that Dr. Parmarnever took any steps to register the transfer before she died, and perfectthat aspect of the gift. Rather, it was Ms. Tiwari who submitted the FormA Transfer for registration on January 19, 2011.

174 I turn then to consider the second aspect of the gift: payment of thetaxes.

175 There is no dispute, and Ms. Tiwari admits, that Dr. Parmar did notdeliver any cheques to her before Dr. Parmar died. Rather, when Dr.Parmar died, the cheques that she signed were in her purse, and theyremained there until Ms. Tiwari sent the January 28, 2011 e-mail to hernephews, asking that she be sent one of them. The evidence is clear that,before she died, Dr. Parmar had made no irrevocable delivery to Ms.Tiwari of the second aspect of the gift: money to pay the taxes associatedwith the transfer of Comox. After Dr. Parmar died, Dr. P.J. Parmar hadno legal authority to “complete” anything - in particular, delivery of anincomplete inter vivos gift - on her behalf. His later payment, personally,of the expenses is insufficient to perfect his mother’s gift.

176 I conclude, therefore, that Ms. Tiwari has failed to prove that Dr.Parmar made a valid inter vivos gift, and she has failed to rebut the pre-sumption of a resulting trust. Accordingly, Ms. Tiwari holds title toComox on a resulting trust for Dr. Parmar’s estate.

(f) The claims based on undue influence and breach of fiduciary duty177 Since I have concluded that Dr. Parmar’s gift to Ms. Tiwari was

never perfected, and that, as a result, Ms. Tiwari holds title to Comox ona resulting trust, it is unnecessary for me to deal with the claims based onundue influence and breach of fiduciary duty. However, I will makesome brief comments.

178 Had it been necessary to do so, I would have found against the plain-tiff in respect of his claim of undue influence.


179 In Turner v. Turner, 2010 BCSC 49 (B.C. S.C.), Verhoeven J. pro-vides a helpful summary of the basic principles, at paras. 58-61:

[58] There are two classes of case where the court will set aside avoluntary gift on the ground of undue influence: first, where the giftwas the result of influence expressly used by the donee for the pur-pose of obtaining the gift; second, where the relationship between thedonor and the donee at the time the gift was made was such as toraise a presumption that the donee had a dominating influence overthe donor.

[59] In the first class of case, if undue influence is proven, then thegift will be set aside. In the second class of case, the court sets asidethe gift unless the donee is able to prove that the gift was made bythe donor exercising a free and independent will: [citations omitted].

[60] The second class of case requires the court to determine whetherthe potential for a dominating influence existed in the relationshipbetween donor and donee: [citations omitted].

[61] Where the presumption of undue influence arises, the doneemust show that the donor made the gift as a result of his or her ownfull, free, and informed thought. This may entail establishing that noactual influence was deployed and that the donor had independentadvice. The magnitude of the benefit may be material: [citationsomitted].

180 See also Stewart v. McLean, 2010 BCSC 64 (B.C. S.C.), at paras. 92and 97.

181 Certainly, Dr. Parmar and Ms. Tiwari were very close in the last yearsof Dr. Parmar’s life. In the months before Dr. Parmar died, they sharedthe same bedroom. Ms. Tiwari was providing daily care and companion-ship for her sister. In the last weeks, Ms. Tiwari was administering mor-phine to Dr. Parmar, to control her pain. On the other hand, Mr. Parmarwas living at Downers Grove with his mother and Ms. Tiwari, and thereis little in his evidence about what he actually observed to suggest thatMs. Tiwari exercised a dominating will over Dr. Parmar in relation toanything. Clearly, and after the fact, Mr. Parmar has deep suspicions, butsuspicions are not evidence. Dr. P.J. Parmar’s evidence does not supportthe allegation of undue influence, nor do the observations recorded in theClinical Records.

182 Moreover, Dr. Parmar was Ms. Tiwari’s older sister. Ms. Tiwarirespected and looked up to her, in addition to loving and caring for her.In the context of their relationship as sisters, that Ms. Tiwari would act in


a way so as to dominate her sister’s will in relation to Comox, a propertyMs. Tiwari said she never wanted, was unlikely, in my opinion.

183 The plaintiff also alleges that, as a result of being given power ofattorney by Dr. Parmar in October 2009, Ms. Tiwari became Dr.Parmar’s fiduciary. This then is asserted to provide the basis for a claimthat, in relation to the Form A Transfer of Comox, Ms. Tiwari breachedher fiduciary duty to Dr. Parmar.

184 Ms. Tiwari was not asked whether she had either power of attorney inher possession. This was an important point in Stewart v. McLean (seepara. 84).

185 However, in my opinion, the critical point is that, in relation toComox, Ms. Tiwari never used the power given to her by Dr. Parmarunder the power of attorney documents. It is undisputed that Ms. Tiwarinever signed the Form A Transfer acting as Dr. Parmar’s attorney undereither power of attorney.

186 Accordingly, had it been necessary for me to do so, I would havefound that the plaintiff had failed to make out a claim for relief based oneither undue influence or a breach of fiduciary duty.

(g) The RBC Account187 I turn finally to the RBC Account.188 Pecore is the leading case on the treatment of joint accounts after the

death of the accountholder who provided all or most of the funds in theaccount. The question is whether the deceased accountholder intended tomake a gift to the remaining accountholder of the money remaining inthe account, or whether that money is held by the remaining ac-countholder on a resulting trust. The presumption of resulting trust is arebuttable presumption of law and general rule that applies to gratuitoustransfers. When a transfer (in this case, the transfer to Ms. Tiwari of thebalance remaining in the RBC Account at Dr. Parmar’s death) is chal-lenged, the presumption allocates the legal burden of proof. The onus ison the transferee (here, Ms. Tiwari) to demonstrate that a gift was in-tended. See Pecore, at paras. 24 and 43. It is the actual intention of thetransferor at the time of the transfer that is relevant: Pecore, at paras. 5,44 and 59. The trial judge must begin the inquiry by determining theproper presumption to apply and then weigh all the evidence relating tothe actual intention of the transferor to determine whether the presump-tion has been rebutted: Pecore, at para. 55. Evidence that is contempora-neous, or nearly so, to the transaction, and evidence subsequent to the


transfer can be considered: Pecore, at paras. 56-59. The types of evi-dence a trial judge can or should consider in ascertaining intent will de-pend on the facts of the case: Pecore, at para. 55.

189 Here, the question is whether, when the RBC Account was opened asa joint account in 1998, Dr. Parmar intended to make a gift to Ms. Tiwariof the balance of the account when Dr. Parmar died.

190 There is no dispute that, until Dr. Parmar’s death, she was the solesource of deposits to the RBC Account. According to Ms. Tiwari, theaccount was set up so that, for example, Ms. Tiwari would have access tofunds in order to pay property taxes on Comox and (probably) Fillinger.Ms. Tiwari testified that she occasionally withdrew funds for her ownuse. However, based on Ms. Tiwari’s evidence, I conclude she did not dothat very often. According to Ms. Tiwari, she did on-line banking in theaccount, transferring money back and forth when Dr. Parmar neededsomething to be paid. However, and although the evidence is quite thin, Iconclude that Dr. Parmar mainly directed how the account would bemanaged.

191 I do not place much weight on the Bank’s “Client Agreement.” Itmight reflect the Bank’s views on how accounts are run, but joint ac-countholders, as between themselves, might have quite different viewsand intentions, especially regarding equitable title to funds. In that re-spect, I note the comments of Rothstein J. at para. 60 of Pecore.

192 I have also concluded that I cannot place much weight on Ms.Tiwari’s evidence to the effect that, when the RBC Account was opened,a bank representative told both Dr. Parmar and her that when one of themdied, the other accountholder would be the owner of the account. I verymuch doubt that Ms. Tiwari could recall such a conversation from morethan 15 years ago. Her evidence is likely simply reconstructed based onmore current events.

193 On the other hand, there is strong support in the evidence for the con-clusion that Dr. Parmar, an intelligent, well-educated businesswoman,understood very well what having joint ownership, or ownership with adesignated beneficiary, meant, and that it meant the asset would transferto the remaining joint owner or the designated beneficiary on her death.That is how she deliberately organized most of her financial affairs, sothat there would be few assets actually passing through her estate whenshe died. In my opinion, the evidence concerning how Dr. Parmar organ-ized her affairs supports the conclusion that, when the RBC Account wasopened in 1998, she intended that, when she died (assuming she died


before Ms. Tiwari), the balance then remaining in the account wouldpass to Ms. Tiwari, who would be entitled to it as the remainingaccountholder.

194 I conclude, therefore, that Ms. Tiwari has met the onus of proof onher to show that, with respect to the balance remaining in the RBC Ac-count, Dr. Parmar intended to make a gift and Ms. Tiwari has rebuttedthe presumption of a resulting trust.

Summary and disposition195 In summary, I find that the defendant has failed to prove that Dr.

Parmar made a valid and complete inter vivos gift of Comox to her, and,as a result, the defendant holds title to Comox in trust for Dr. Parmar’sestate. Accordingly, I declare that the defendant holds title to Comox intrust for Dr. Parmar’s estate, and I order that, within 45 days of the dateof this Judgment, Ms. Tiwari cause legal title of Comox to be transferredto Dr. Parmar’s estate.

196 The plaintiff has failed to make out a basis for relief respectingComox on any of the other grounds pleaded.

197 With respect to the plaintiff’s claim respecting the RBC Account, Ifind that the defendant has met her onus to prove that, when the Accountwas opened, Dr. Parmar intended that Ms. Tiwari become the legal andbeneficial owner of the balance remaining in the account on Dr. Parmar’sdeath. The plaintiff’s claim in respect of the RBC Account is, accord-ingly, dismissed.

198 If the parties are unable to agree on costs and wish to make submis-sions concerning them, they may do so in writing, provided such writtensubmissions are served and filed within 60 days of the date of this Judg-ment. I will leave counsel to agree on a suitable schedule for the ex-change of written submissions. Submissions are to be no more than 20pages, double-spaced, and the font size must be no smaller than 12 point(except for quotations). There is no page limit on any affidavit evidenceeither party may wish to file.

Action allowed in part.

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